Monday, April 5, 2010

Indian judiciary is in trouble

Executive, legislature and judiciary – we have been hearing/reading these terms since our introduction to Civics in Standard IV. Hardly did we realise then that our nation, the largest democracy, thrives on these three terms. Well, now that we are aware of this fact, we have also formed certain opinion and perception about these estates of the Indian democracy.

Talking about these perceptions, executive and legislature usually lack the respect and the belief that judiciary manages to hold. I agree that judiciary also faces its share of flak, but mostly, the formers are tagged with corruption, dynasty, red tape…and the list goes on.

Judiciary is (although arguably) one of the most respected institutions in the Indian context. It is often hailed as the most independent and most learned estate of our democratic structure. But lately, it has come under strong criticism on one basic issue – appointment of judges in the higher judiciary (High Courts and Supreme Court).

Let me first mention the procedure that is followed for the appointment of High Court judges. It is primarily on the basis of seniority. Besides, there is a standing committee in each High Court, comprising the chief justice of the state and other two seniormost judges of the concerned High Court. They choose the names from amongst the District and Sessions Judges in the state. But a major cause of concern here is that they are not bound to select on the basis of seniority, and are not answerable to any authority if they choose to skip names in the list of officers.

Well, after having done the ‘selection’ (of course on the basis of their whims and fancies), they forward the names to the Supreme Court collegium, which consists of the Chief Justice of India and two senior judges of the apex court. And to understand the modus operandi of the collegium in simple terms – if one of the members says that he knows a particular officer in the list, and that he/she is not a ‘fine’ person, the name is dropped. No substantial reason is needed for selecting or rejecting an officer.

The aforesaid facts clearly depict the nature and point the discrepancy in the procedure. As is evident merit hardly plays a role in the whole system. And this perhaps explains why judges like Justice Dinakaran have managed to become the chief justice of a state. One can certainly counter me by saying that he has already been exposed, and has also been penalised by not getting elevated to the Supreme Court. But given the nature of corruption he has been involved in, we can well imagine the damage he would have done to the institution and, thereby, the Indian democracy, before being exposed.

However, Dinakaran is not the major threat. Those who have managed to shield themselves till now, and have not been exposed are the real threats, as they harm the system from within like termites.

Recently, I came across a statement from the chief justice of a western Indian state. It read: “judiciary in this state is in a very bad shape. Anyone can be bought in the judiciary of ******* (name of the state).”

I would like to share here that this Mr Chief Justice was once in the Jharkhand High Court, and had then prevented an honest and senior District and Sessions Judge from making it to the High Court, perhaps, because he knew that the officer might create problems for the corrupt lobby he had been managing there.

The real problems of the Indian judiciary, and the real threat to our democracy, are officers like this Mr Chief Justice. Such people have managed to pave their way into the top jobs in the absence of proper structure and regulations.

And those like Justice Shah, considered as one of the finest judges the Indian judiciary has ever had, never get their due. Despite being a judge of such high stature, he never got elevated to the Supreme Court of India. His recent popular judgements include the inclusion of the court of CJI in the RTI ambit, and the ruling on Section 377 of the Indian Penal Code. The worth of this man can be judged with his, apparently, only public statement: “A judge should only speak through his judgements, and not through any other media.”

The Indian judiciary did introduce the Contempt of Court Act in 1952, which has been protecting and maintaining its secrecy, but never formulated an act which would help solve the problem of appointments.

Though the Law Ministry has raised objections on the system of collegium, it’s yet to be seen what course of action is taken on the issue.

And it’s high time something was done about it, for any delay in this regard would only supplement the disrespect of the ‘most respectable’ estate of Indian democracy.