Tuesday, January 16, 2018

What ails Indian judiciary?

“The light has gone out of our lives and there is darkness everywhere”.

- Extracts from Pt Nehru’s radio broadcast after assassination of Mahatma Gandhi

Statesmanship should easily come to the judges, but not the rebellion. The
unprecedented thing happened on Jan 12, 2018. Four wise men of country’s
top court decided to take a plunge into the whirlpool of media and addressed a
press conference to take on the Chief Justice of India. 

Did we all see it coming?  

Is our judiciary – a saving grace among all institutions in world’s
largest democracy getting into murkier affairs? What’s the truth?
Well, in an intellectual hypothesis – we may say mere Sincerity is no measure
for Truth. In a little perplexed sense, no matter how sincere you are, one may be
still wrong. In the latest episode of judges’ row – who have been wrong, the
four ‘rebel’ judges or the Supreme Court Chief Justice Dipak Misra himself? Or
both sides?

Was it a good issue to come out in the media? 

Is it true some senior journalists and a prominent lawyer actually anchored the entire media extravaganza? If so
why? And if yes, what difference does it make to the actual merit of the case?
The government – put on the back foot and displaying yet another major
‘intelligence failure’ – to borrow an oft-repeated phrase - took a cautious line
and counselled that the problem of judiciary should be handled and resolved by
the highest court of the land and other wings of judiciary itself. But the damage
was done.
Was it a responsible response from the government? The Congress President
Rahul Gandhi rightly described the episode as important and serious and said
the matter ought to be looked into.
Yashwant Sinha, now a permanent trouble maker in the BJP fold, defied his
party line and implied the issues raised by four judges were important and
should not be brushed aside.


As a preliminary to any discussion on the ailments of the Indian judiciary, I
conceive it as a medium for dispensation of justice without any prejudice, slant
and unfairness. As an ardent admirer of parliamentary system of democracy – as
we have also grown with it and nurtured it in last 70 years – I presume a healthy
democratic set up and an independent judiciary also imply that there is also no
clash and more importantly no interference into the affairs of one wing from
the other. 

In other words, the executive – that is the government, the ministers
and the administration – should stay away from independent functioning of
Parliament or state legislature and the judiciary. And vice versa.
That way, when it comes to court hearing, justice must be delivered wherein
there is no bias or otherwise. This spirit remains underlined, importantly, at all
levels of courts – lower courts, High Courts and finally the Supreme Court.
Having said so, one must confess there are bound to be ‘differences’ at times
between different pillars and also sometimes within the respective pillars as
well – since democracy involves reconciliation of conflicting interests through
discussion and debate.

To analyse these issues in respect of January 12 developments also means we
need to examine on what really led to the unprecedented media outburst.
Thankfully, once the issue flared up – at subsequent stage – it did not get
murkier further as all and sundry seem to work to maintain calm.

To start with the role of Bar Council of India and Supreme Court Bar
Association ought to be appreciated as the regulatory bodies for lawyers
unanimously decided to form a delegation to meet the Judges and help mediate
a solution. The underlining theme was that such matters should not be made public as Judiciary is an important pillar of the Constitution and the people of India have unflinching faith in the judicial system.

There is also thus a need to examine why we have overdose of politics into
everything. Why even the developments in a court room – based on legal
procedures and laws – quite often get linked to politics? Incidentally and
perhaps unfortunately, in India, life revolves around politics and politicians.

Reflecting about media coverage, one has a legitimate right to point out that in
many other countries, distinguished scientists, economists and industrialists,
industry houses and sports-stars get greater media coverage. So much things
have cheapened in terms of what makes ‘news’ for media – that science
journalism is a vanishing art today in world’s largest democracy.

Well, the nation gets the kind of leadership it deserves. Stream cannot be
different from the source. This logic applies to media and other pillars as well. I
have hardly implied that everything is wrong in Indian judiciary or in Indian
politics today. But it is high time, we ask, what ails Indian judiciary?

True, yet again, there has been intent, cold and undeclared war between
judiciary and politicians in several countries. So if today – the judges’ row as
one sees from outside is actually linked to conflict between a political class and
a section of judiciary, things should not baffle us.In earlier times, they say, both Indian politics and the legal fraternity attracted
the best in India. In the process, they were mutually complementary. But now
there is a keen competition of different sort. At least for politics – one has often
heard – when you cannot do anything in any other field, you become a

This leads me to a possible answer to a question – what ails Indian judiciary.
Mainly there is a perennial obsession about politics and the power politics. This
indirectly links to the government of the day – at different levels. Thus both the
governments – in the states and in the centre and the ministers become principal
players indirectly -- - influencing developments related to judiciary. In other
words, Prime Minister in office or incumbent Chief Ministers become crucial in
more ways than one. Actually, nothing is more dangerous to a democracy.
Moving further, I have been reflecting on the recent debate in Lok Sabha on
judges’ salary bill. Many good orators among lawmakers irrespective of party
affiliations have suggested for judicial reforms. It is high time, the country
works on those lines.

During the debate, many members spoke on who is ‘supreme’ – the Supreme
Court or Parliament. Some insisted as members of Parliament they were
‘supreme’ as they were elected by the people. One member even suggested, “no
one in the country is more supreme than the people”.

The idea being even parliament has the right to prevail upon the jurisdiction of the Supreme Court. I do not subscribe to this view, however.

But there are issues which MPs rightly suggested and these ought to be looked
into. The powers under ‘contempt’ of court law are in public debate now. In the
words of one sitting MP, “contempt of court is the biggest sword hanging on the
head of the executive”. And he said so in Lok Sabha. In terms of enhancing
transparency of court proceedings, the suggestion of live telecast of important
cases in court proceedings should be taken up with priority.
In conclusion, I would like to sum up by making a reference to historical
instances wherein countries like Spain and Portugal stopped moving ahead from
the 16 th century. When the mind ceases to thrust outward, it marks the beginning of contraction. 

Spain and Portugal were powerful civilisations in the 15 th century. But at subsequent stage, they allowed other nations to take up the vast goals and develop new ideas. These two countries have not yet recovered from that decline. In terms of good and bad too this happens.

This can happen in terms of Indian politics and judiciary too. If goodness is hesitant today, tomorrow, we might witness a competition in attracting the ‘rejects’ of the society. Time to bell the cat.


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