ARTICLES FROM THE SUNDAY GUARDIAN
Copyright. All rights reserved. Ram Jethmalani. 2017.
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Those who really cry for justice, social and socio-economic, have nowhere to turn to, not to the present system.
There is no public institution in India that has not registered a steep decline of standards, and correspondingly of public confidence, in the last few decades. The judiciary is no exception. But the damage caused by decline in judicial standards is incalculable and incomparable with that of any other public institution.
An impartial justice system has been the aspiration and endeavour of every civilisation in recorded history, even the most ancient. The evolution of democracy, culminating with the ultimate power vesting with the people, has been accompanied across the world with the evolution of an independent judiciary. The founding fathers of our Constitution incorporated the theory of separation of powers between the legislature to enact laws, the executive to implement them, and the judiciary to adjudicate over them. It followed Montesquieu's dictum that "Constant experience has shown us that every man invested with power is apt to abuse it, and to carry his authority until he is confronted with limits."
India's judiciary is one of our most revered institutions, and I have repeatedly reiterated in all my writings and speeches that compared with other public professions or persons, such as politicians, government officials or business persons, our judges are unquestionably superior to them in integrity and morality.
The British took care to structure India's judicial system on their own model. It replaced the Shariat, which operated in most of erstwhile Mughal India, with the Indian Penal Code and the Evidence Act. This new judicial system, which was based on evidence and impartiality, as against the gossip based arbitrariness of the Shariat or other irrational customary laws, provided a positive distraction to the local populace, even as the colonial power concentrated on the exploitation of India's resources and manpower. British India's judges were appointed by the Crown, but remained independent from it. After Independence, this principle of an independent judiciary was incorporated as part of the basic structure of the Constitution, which cannot be amended.
To ensure the independence of the judiciary, judges in our country have been accorded great constitutional protection against their removal. Unlike the legislature and executive, they are not accountable to the people in the literal or constitutional sense, though they too are clad with a permanent moral and social responsibility to the people and institutions of India who come before them for administering perfect justice. An honest and intelligent judiciary can compensate for corruption in every other branch of government. It can exercise its constitutional powers to prevent and nullify legislative frauds on the Constitution. It can declare as ultra vires laws that clash with constitutional provisions, and strike down corrupt or mala fide actions of ministers or bureaucrats. It can reverse illegal or wrong actions of subordinate courts, and it can rigorously enforce criminal law against corrupt offenders, even if they occupy the highest decks of political life. In short, the judiciary is almost omnipotent and unaccountable.
No judge must aspire for harmony with the legislature and the executive. He must brace himself for a life of tension with both, in the intelligent and stout defence of his wards, who constitute the citizens of our country, from attack by the legislature, the executive, and even from the judiciary.
Democracy today faces the emerging threat of terrorism. Dynamic democracies are being transformed into defensive democracies, something that is of great concern to the civilised world. Judges need to become aware of the new legal dilemmas that are emerging — the tension between the imperatives of protecting the state and the rights of the individual. What is the role of the judge in these extraordinary situations? This ever present tension will intensify and become more pronounced, unless the terrorism monster is effectively checked. The role of the judge in this emerging scenario, when the state is attacked by lawless individuals, is a matter that calls for serious discussion. True, judges must maintain a respectable distance between themselves and litigants, but even so, the bridge between society and judges must be maintained and strengthened. This bridge can best remain intact when judges acquire a deep understanding of contemporary society and societal needs, and these insights are clearly reflected in their judicial product.
The popular perception about our judiciary today is also a matter of concern. The highest plaudits come to it whenever a corrupt politician, bureaucrat or businessman finds himself within the dragnet of the law. How many times have we heard these words from them, "I have full faith in the judiciary, let the law take its course"? This "course", which the law will take, will extend from the trial court to the high court, and then to the Supreme Court, the whole process punctuated by multiple "stays" (rule nisi), innumerable adjournments during the entire "course", all of which can take decades, before the matter is finally decided. To quote a few examples, it took 40 years for L.N. Mishra's murderers to be convicted, and about 20 years for Sukh Ram to be convicted of corruption.
Let me quote something from the 11th Law Commission that says it all: "The system is today used by the rich, the affluent, the anti-social and the parasites. Those who really cry for justice, social and socio-economic, have nowhere to turn to, and at any rate not to the present system."
It stands to logic that the more corrupt the political government becomes, the more corrupt it would like its judiciary to be. A corrupt government needs a corrupt judiciary just to be able to survive, and provides the greatest opportunity for corrupt judges to infiltrate into the judicial system. And to make this happen, the executive can go to any lengths of subversion — Mohan Kumaramangalam, distinguished lawyer and politician claimed in 1973 that the "social philosophy" of judges should determine their eligibility for appointment, and started the theory of a "committed" judiciary. Indira Gandhi tried to break the backbone of the judiciary by superseding three judges for the appointment of Chief Justice of the Supreme Court, just because they were perceived as being not "committed" enough.
Another phenomenon regarding the judiciary that has manifested itself is that whenever the moral character, public authority and credibility of other branches of government diminish, the judiciary tends to expand its powers and outreach, taking on tasks that are rightfully in the domain of the Executive, which they are intellectually ill equipped to understand or administer. This trend is popularly called "judicial activism", and is almost like a trespass, for example, in the domain of public health, public transportation, child care, environment, even cricket and the IPL. The judiciary should seriously introspect on this issue.
Let me quote what Edward F. Cummerford, an eminent New York lawyer has to say about this in his article "Judicial Jumble" printed in the Wall Street Journal in April 1968. "No matter what euphemisms are employed to disguise its effects, careful reflection must lead to only one conclusion: Judicial Activism is not merely inconsistent with the rule of law, it is total negation of the rule of law. If cases are decided on personal philosophies of judges, then in reality there is no law. If the Constitution has no objective meaning but means only what judges think it ought to mean, it is not a Constitution at all but an empty symbol, a sort of national totem. History shows that vague laws, subjectively interpreted and arbitrarily applied, are the tools of the tyrants. The equation is as old as the human race — power minus responsibility equals despotism."
Like every other institution in India, the judiciary too is beset by the quantum jump in the numbers it must handle. The Supreme Court-supported National Court Management System (NCMS), informs us that "India has one of the largest judicial systems in the world — with over 3 crore of cases and sanctioned strength of some 18,871 judges", the average age of a civil case being about 15 years. Because of increasing literacy and per capita income, it is expected that over the next three decades, case pendency is going to register a five-fold increase to touch 15 crore, but the judge strength will go up only four times to settle at 75,000.
It is clear that the severe shortage of courts, judges and infrastructure at all levels only results in high pendency, delayed or denied justice, lengthy proceedings and repeated adjournments, and temptation for corruption.
In this scenario, how should the nation address these urgent needs and bring about a reform in the judiciary, something which the judiciary itself is reflecting upon. More about that in my next piece.