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.

8 comments:

  1. It's a shame that the judiciary is also heading towards the same way our executive and legislature have in the past. And for this 'most respectable' profession, it's a serious problem. Good point raised Shobhit!

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  2. Some of the legal jargons n processes have been very clearly put forth before a layman like me. And its really shocking to read the way our esteemed judges are selected for top courts of the country. It calls for immediate action othrwise the rot wud further weaken the foundations of our democracy...Saif

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  3. Your piece is really very bold and intrguing. The most revered institution is really in shambles - and mainly because it completely lacks accountability. you are very right in saying about the process of 'selection' which actually lacks totally in making a true selection. As a matter of fact, it has always been a misnomer & misconception that the judiciary has not been corrupt, while the reality is that it has always been so - though not in terms of money. There has never been a role of money in the internal administration and selection process within the institution - unlike the other organs of governance - but perhaps that is the reason that all other negative 'isms' apply with their full force - topped by casteism and regionalism. The other key factors are sycophancy and unbriddled authority. The institution is really in danger, as the present system doesn't tolerate those with undiluted integrity, boldness and innovative skills. Constitution of a National Judicial Commission is the only device to hold the rot, and the intrduction of Indian Judicial Service on the lines of I.A.S. & I.P.S. is the only way out to let the fresh wind enter. I can't but hold myself from remembering the words of Lalu Yadav, though ironically, who said that 'higher judiciary in India is the puppet in the hands of only 200 families'. We dismissed his version as that of a highly disgruntled person, but was he rally wrong? The time is rife to find the answer.

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  4. Very interesting and informative... Holds attention... I have the highest regards for the Indian Judiciary but such incidents don't come into light...We need more people from Media to cover this aspect

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  5. The second comment by Saif just proves my point... corruption is cropping up in the judiciary at such pace and most of us are not even aware of it...ur piece has shed light on the issue... Good job Shobhit!

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  6. The Judiciary in India has always been elitist, a feature handed down by the British and hence the lack of transparency, and in spite of its stated respect, the trust in Judiciary has been shaky on the ground level, for people like you and me and all the demerits like long wound cases, long waitlists and what not are actually because that this elitist system has refused to evolve with time. as is the case with evolution, it either happens in slow motion or in abrupt mutations and it looks like Indian Judiciary needs a mutation. Corruption exposed in the system and the potential knee jerk reactions that it may lead to opening up the system and make it more accountable, till then u and i need to keep asking for more transparency.

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  7. Nice one Shobhit... First of all, let me thank you for enlightening us on the level of corruption in Indian Judiciary & the impact it will have on every citizen...The passage is explained explicitly & has been supported with some very good examples...I completely agree with your point made on existing selection procedure of High Court Judges...Having worked for long enough in corporate world, I can easily understand how the existing selection procedure will demotivate the high performing Judges as they will constantly be ignored, while being evaluated for the next level, for some selfish reasons...I personally believe that a transparent performance evaluation system will not only guarantee Indian Judiciary able & trustworthy Judges but also help in instilling a common man lost faith in Indian law & Judicial System... I read all your blogs & I am quite amazed & impressed with your style of writing, the clarity of ideas, its presentation & reviews received from all your fans & followers. Keep writing & will wait for your next blog...

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  8. I appreciate your work. It is not that the corruption was not there in judiciary in India, it has been. However, no body seems to be questioning it. Now things are changing, people are becoming vigilant and now you have more information oriented Act e.g RTI. Dinakaran's case is stand-alone case that has been followed by media and supported by top lawyers. There are other cases too, e.g PF Scam, Punjab High Court Case ( delivery of money at doorstep etc.)
    I like this work of yours, Please keep poring in ...........

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