By Kuldip Nayar
Courtesy: Dawn, 11 Dec, 2009
During the Second World War, Winston Churchill, the then British prime minister, wrote to the lord chancellor, the chief justice, to ensure that the judiciary delivered justice.
Concerned, the lord chancellor asked Churchill why he had expressed such a fear when his attention was focused on how to stop the advancing Nazis. Churchill replied that as long as people were sure of getting justice, they would fight for their country even in the middle 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, 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 per cent of the judiciary was corrupt. Judges and other luminaries have accepted the charge without a murmur because they know that it reflects the general impression.
Leading lawyers have pointed a finger at certain judges. Bars have passed resolutions. The media has given specific instances of judges not being above board. The supreme court itself is in the dock because of allegations against the highest level.
The question is who should oversee them. Obviously, the executive cannot. 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 look into the charges. 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 judiciary works under a blanket of secrecy. When the Central Information Commission (CIC) asked the supreme court to disclose its complete correspondence regarding the recent appointment of three judges, it stayed the CIC order. The Right to Information is a law in operation. Transparency is necessary for the functioning of a democratic system. How helpless the polity appears 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 the high courts and the supreme court. All this is done by the supreme court collegium. 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 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’s chief justice, P.D. Dinakaran, has brought matters to a head. He is alleged to possess 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 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 a crisis. But this is not a permanent solution.
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 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 much good to the judiciary and the executive.
If a judgment is delayed for years, it amounts to its denial. There is a backlog of about 30 million cases. A person has to wait 15 years for a judgment. In some cases of murder, the verdict is yet to be pronounced even after the hearing 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 backlog. Yet much depends on how quickly the verdict is pronounced. Too much time is wasted on the methods that a litigant adopts to stall 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 compromising on the quality of justice. Judicial reforms are something basic to fast-track justice. At present the judiciary has increasingly become a mutual protection society.
Judgments speak for the judges. But over the years they have learnt how to cover up their slant. J.C. Verma, then the 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, and not allow it to weaken because of the taint that the judiciary has come to acquire. Some remedial steps need to be taken. Only then will the judiciary sparkle again.
The writer is a senior columnist based in Delhi.