Judiciary losing its sparkle
During World War II, when Great Britain was losing on every front, Winston Churchill, then prime minister, wrote to Lord Chancellor, the Chief Justice, to ensure that the judiciary delivered justice. Surprised, Lord Chancellor frantically asked Churchill why he had expressed such a fear when his attention was focused on how to stop the advancing Nazis. Churchill replied immediately to observe that as long as people were sure to get justice, they would fight for the country even in the midst of reverses.
Today, that type of confidence among the Indian people has been shaken. Two things have happened. One, the judiciary is found wanting, and two, the justice is delayed. Take the first. Chief Justice P.N. Bhagwati said some two decades ago on the eve of his retirement that judicial corruption was growing by "leaps and bounds." Not long ago, retired Chief Justice S.P. Barucha also alleged that 15 percent of the judiciary was corrupt. Judges and other luminaries have accepted the charge without murmur because they know that it reflects the general impression.
Leading lawyers have come out in the open to point a finger at certain judges. Bars have passed resolutions to that effect. A dominant public opinion is that it would not get fair judgment. Media has given specific instances that so and so among the judges was not above board. Whether it is Punjab, West Bengal or Karnataka, the protest against corruption of judges is open and loud. The Supreme Court itself is in the dock because of allegations at the highest level.
The question is who should oversee whom? Obviously, the executive cannot do so. Even otherwise, its own image is not without tarnish. If Parliament were to step in, the judiciary would be up in arms. The constitution gives the latter the right to "legal scrutiny" of legislation to ensure that Parliament does not violate the basic structure of the constitution.
There is a proposal to have an ombudsman to look into the charges of even the serving prime minister. The successive governments have promised to set up such an authority but they have shied away from giving it any concrete shape because of the fear of some independent authority assessing their acts of omission and commission.
The working of the judiciary is under a blanket of secrecy. Even when the Central Information Commission (CIC) has asked the Supreme Court to disclose complete correspondence and file noting on the recent appointment of three judges, it has stayed the CIC order. Right to Information (RTI) is a law in operation. Transparency is necessary for the functioning of a democratic system. How helpless the polity looks when the highest body, the Supreme Court, stalls a case pertaining to its conduct.
In fact, there is a question mark against many appointments to High Courts and the Supreme Court. All this is done by the Supreme Court Collegium, a body of three senior-most judges of the Supreme Court. If one were to go back in history, one would find that the central government was party to the messy situation that the country faces today.
Under the constitution, the government's consultation with the chief justice is essential before any appointment to the High Court or the Supreme Court is made. There came a time when the government was unhappy over the rejection by the chief justice of certain names it recommended. An obliging Supreme Court judge came to the rescue of the government to interpret that "consultation" did not mean "concurrence."
It made the chief justice more or less redundant because the government consulted him but did not consider it necessary to have his concurrence. After some years, the pendulum swung to the side of the judiciary. The Supreme Court would consult the government but did not think its consent was necessary.
The case of Karnataka Chief Justice P.D. Dinakaran has brought the pot to the boil. He is alleged to have possessed land through encroachment on government property. The Collegium has recommended his elevation to the Supreme Court. But the government has refused to accept the recommendation. It has asked the Collegium to reconsider its decision.
As per the convention, Justice Dinakaran's elevation is binding if the Collegium re-endorses its recommendation. Were it to do so, the country would face a constitutional crisis. Reports are the Collegium would not press its recommendation. This would, no doubt, avert the crisis. But this is not a permanent solution.
Willy-nilly, the government will have to implement the proposal for the constitution of a judicial council comprising judges and outsiders to give the selection of judges a proper balance. Coming specifically to the case of Justice Dinakaran, a motion for his impeachment in Parliament is already in the air. If impeachment proceedings are initiated, the whole matter would come before the public for debate. It would do a world of good to the judiciary as well as the executive. One thing can lead to another when the facts are there for all to see.
The second thing is that judgment is delayed for years. It amounts to the denial of justice. The arrear of cases is around 30 million. A person has to wait some 15 years for the judgment. In some cases of murder, the verdict is yet to be pronounced even though the hearing was over more than a decade ago. The union cabinet has cleared a scheme to appoint 15,000 retired judges or those who make the grade, to clear the arrears. Yet, much would depend on how quick the pronouncement of the verdict is. Too much time is wasted on dilatory methods that a litigant adopts to stall the judgment.
Starting from the lower court to the Supreme Court, it is a long legal haul. Some procedures, some debates, some discussions and some paperwork can be cut so that the pace is fast, without compromise on what justice demands. Judicial reforms are something basic to have fast-track justice. At present, the judiciary has increasingly become a mutual protection society.
Judgments speak for the judges. So says Solomon of courts. But over the years they have learnt how to cover up their slant. J.C.Verma, former chief justice of India said: "If we (judges) don't question ourselves, the people may enact a law empowering something to question us." The judiciary is one of the pillars on which the edifice of democracy rests. The pillar is showing cracks. Parliament, representing the will of the people, needs to repair the pillar, not to make it still weaker because of the taint that the judiciary has come to acquire. Some remedial steps need to be taken. Only then will the judiciary sparkle once again.
Kuldip Nayar is an eminent Indian columnist.
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