Thanks to Anna Hazare’s crusade against corruption, the phrases such as “judicial reforms” and “judicial accountability” have also become buzz words among the common masses of the country. Recent corruption cases such as the 2G scam, the CWG scam, the cash-for-vote scam, Adarsh Society Scam, etc have not only focused the spotlight on the conduct of politicians and public dignitaries but also on the shortcomings in the Indian judiciary’s functioning.
Legal experts, social activists, business magnates, and all those who have ever come in direct contact with Indian judiciary have always been unequivocal on the need for a clearly defined legal and regulatory framework and efficient disposal of cases. Clearly the legal apparatus and infrastructure have failed to keep pace with the rising population, changing societal structure, increasing number of laws, and increasing technological activities.
While rapid advancements in information and communication technologies have drastically changed the lifestyles of people, yet the judiciary appears rather cut off from the current ground realities. No surprise if the prevailing system of administration of justice appear totally out of place and out of time. It is still ridden with old fashioned form, procedure, and technicalities that please no one, except perhaps the vested interests who take comfort in the status quo. A section of politicians and judges are certainly in this group who find a dysfunctional judiciary very cozy.
There is no doubt that the judiciary is in dire need of speedy and effective reforms: ranging from appointing of judges, to instituting a transparent and non-partisan structure of inquiry free from legislative and judicial interference, to punishing corrupt judges.
Corruption in judiciary as rampant as elsewhere
The judicial system is no less corrupt than any other institution of the government; it is well known to those who have had to deal with it. Its extent appears less because there are no in-house system of accountability – whatever mechanisms exist, they are ineffective. The media is also unwilling to talk about it because of the fear of contempt.
The Supreme Court has also compounded the matter by removing judges even from the ambit of criminal investigation. Thus one cannot even register an FIR against a judge taking bribes without the prior permission of the Chief Justice of India. Thus, the judiciary has become highly self protective and taken the form of a closed and opaque box.
Removal of judges difficult
One thing is very clear about our Legal system – it lacks in-house self correcting mechanisms. Why? Because judges can’t judge their own brothers objectively and in the unlikely event of any judge being found guilty, the cumbersome parliamentary impeachment procedure almost assures that they are never removed.
In the last three years, there have been many incidents of the judiciary misusing its official position for personal gain. These allegations have created concern amongst those who believe only a strong judiciary can protect our democracy and human rights. Currently, the only punishment is removal from office, a cumbersome and impractical process. Since it is rarely necessary to remove a judge, many feel that a minor penalty is often deemed enough.
The very recent impeachment proceeding of Calcutta high court judge Soumitra Sen (found guilty on charges of misappropriation of money and misrepresentation of facts) has highlighted the need for an honest debate on judicial reforms. He is the only judge to have been ever impeached by any house of the parliament. His impeachment motion was passed by the Rajya Sabha but he resigned before the Lok Sabha took up the motion – and escaped removal through impeachment. In early nineties, Supreme Court judge V Ramaswami had faced similar proceedings in Parliament. But the Congress bailed him out by abstaining from supporting the impeachment motion.
Sen is just one among many tainted Supreme Court and high court judges, who have contributed to the steady erosion of credibility and faith in the judiciary. There are other names that sometimes find mention in the media. The reasons are very clear: the system of judge’s appointment is self serving and their removal process is highly cumbersome.
Why can’t a joint parliamentary committee perform the ritual of removing a judge?
Rising pile of pending cases
The backlog of millions of cases in all categories of courts is the most damning evidence of the inadequacy of the legal apparatus. However, it is only a symptom and the remedy must go to address the root causes.
Raising number of judges, setting up more courts, and simplifying procedures are always discussed religiously but when it comes to implementation – it is always too late and too inadequate. The victims are the ordinary or poor people when they have to deal with courts which are mostly foreign lands for them. The rich, of course, can buy expensive lawyers and manipulate things in their favor in the procedural quagmire of Indian judicial system.
International investors and corporations take this as one of the big hurdles of doing business inIndia. Indian businessmen resort to all means other than courts for settlement of disputes. Courts are considered only as a last resort or as an means to harass the opposite party.
Undertrials and their hardships
The majority of undertrials spend more time in jail during trials than the maximum sentence that can be imposed upon them. Even if they don’t, the expenditure and agony of defending themselves during this long ordeal in courts is more painful than serving the sentence that could be imposed.
This agony of undertrials in the judicial system provides an easy way for the police and powerful people, who can have the police at their side, to harass, intimidate and silence inconvenient persons – particularly the political activists.
Alienation of the Poor
The alienation of the common man inIndiawith the judicial system leads to his feeling that the court-room is an alien-land where procedures and technicalities, rather than truth and morality, rule. It is difficult for an ordinary man to get past the complicated procedures or the middleman exploiting their ignorance to make money.
No connection with society
Judiciary is an integral part of the society and its interaction with the local populace is healthy thing. In fact, its linkages with the society must be strengthened and nurtured. In many countries the system of jury ensures the involvement of common citizens in judicial decision-making.
But things are different in India. The Indian judiciary still is as an extension of the colonial regime. The British set up the system as a symbol of imperial power and the court procedures were meant to make the natives servile. The historic aloofness should have changed in last six decades, but the judicial officers have failed to come closer to the ground to meet the common man.
No interaction with academia
In almost all democratic countries ofEuropethere has been a long tradition of interaction of the judiciary with the academic brains. That serves to provide feedback and guidance to both. In fact, universities offer fertile ground to cultivate and grow fresh ideas and have the potential to act as think tanks.
Situation inIndiais quite the reverse: Our nose-in-the-air legal presiding officers would still rather study the judgments of British Courts than develop a working relationship with Indian academic community. Their high handed ancient attitude has failed to evolve any meaningful relationship between the judiciary and the academic community; it has weakened both these important institutions in India.
The pathetic state of the legal education can be seen everywhere. Getting into a law curriculum is still the last option for students; after all other gates are closed. It is not unusual to meet qualified practicing lawyers who cannot even draft an application. They have to count on the typists sitting in the court premises to draft all documents for them. And a couple of years staying in the system gives them enough “experience” that enables them to rise to become senior advocates or even judges. No wonder they have to maintain their aloofness from the outside world!
Disconnected from the ordinary people as well as universities where law graduates are prepared, our legal system perhaps wants to preserve itself like potatoes in the cold storage!
Why should judges appoint judges?
Indian Constitution makes Indian judiciary sort of a self-regulatory body. The Supreme Court and High Courts exercise powers of superintendence and also lay the procedures for conduct of business in the courts. The powers of the Supreme Court are almost unlimited. Article 141 of the Constitution has given Supreme Court powers to act even as a legislative body.
With its “creative interpretations” of the Constitution the judiciary has placed itself above all and gone beyond the reach of politicians. This has disturbed the fine balance between the executive, legislature and the judiciary.
As things stand, the judiciary has used its power only to insulate itself both from criticisms and accountability. It has failed to evolve any internal system of intellectual growth of its Honorable members. Although some of the finest brains can be found in the legal fraternity, there is no systematic mechanism to either attract high quality talent to the legal profession or to nurture the legal profession inIndia. Its distance from the academia only compounds the problem further.
Repeatedly voices have been raised from various quarters that the appointment of judges should be vested with an independent authority that has representation not only from judiciary but also from other segments of the society. Let us see when and how this serious distortion is remedied.
Power of contempt
On top of all this immunity to the judiciary is the power of contempt of Court, which has become potent weapon to stifle public criticism or even honest evaluation of the judiciary. While deterring people from making unwarranted attacks on judiciary, the Contempt of Courts Act, 1971, has also stifled debate. That’s why judiciary’s conduct is hardly discussed or debated in the media.
And now the judiciary is even seeking to remove itself from the purview of the Right to Information Act. After having loudly pronounced that the citizens have a right to know everything that goes on in every public institution, the Supreme Court asks the government to effectively exempt it from the purview of the Act by removing the jurisdiction of the Central Information Commission over the Registrar of the Court! What an interesting comedy!!
Many High Courts have still not appointed public information officers required by the Act. The Delhi High Court has framed rules which prohibit the release of non judicial information about the court, such as purchases and appointments. All this has ensured that the judiciary becomes a law unto itself, totally non transparent, and accountable to none.
Government and judiciary not serious about judicial reforms
Successive law commissions appear to have devoted considerable time in analyzing the reasons behind the lethargy of the system, rather than showing seriousness about making it easily accessible to the poor or on the issue of judicial accountability – both very crucial. Law commissions have been largely manned by retired judges who have displayed little creativity or fresh problem solving thinking in their reports. Their patchwork solutions have only diverted attention from the root causes that need radical restructuring of the judiciary.
Moreover, neither government nor judiciary has shown seriousness towards what the law commissions’ recommend. It appears that both are content with the present out-of-date and unaccountable judicial system. For good reason too: the judges are happy with the lack of accountability and the government is happy with an institution that can’t hold it accountable for its actions in any meaningful way.
Remedy: An independent permanent judicial commission empowered with appointments, investigation of improper conducts, prosecution, and removal of erring judges.
Read Our Detailed Report: Judicial_Accountability_in_India