The Judiciary in India has long been revered as the bridge between the executive and legislative wings. It is credited as being the watchdog of democracy, for its vigilant role in ensuring harmony between the organs of the government and maintaining checks and balances of authority. It is for this very reason, that the judiciary has been accorded with an independent status, and is above legislative scrutiny. But, given the present state of affairs, it is quite prudent to analyse why this unquestioned status is turning out to be more harmful than enabling and facilitating.
Appointment of judges has been a highly debated topic over the decades. Initially, judges to the higher as well as lower judiciary were appointed by the National Judicial Appointments Commission (NJAC). Its members were the Prime Minister, the Chief Justice of India as the ex-officio Chairman, two other judges of the Supreme Court, the Minister of Law, the Leader of Opposition in the Lok Sabha and two eminent persons in the field of law. This body used to appoint judges after careful scrutiny and observation. But, in a Supreme Court judgement of October 16, 2015, NJAC was repealed. Instead, to increase the authority of the judiciary in deciding appointments, the Collegium system of judges was suggested, thus considerably reducing the say of the legislative in the matter.
Presently, six senior most judges of the Supreme Court constitute the Collegium. But, since NJAC was repealed, there has been a ceaseless tussle between the judiciary and the legislative over judges’ appointment. Only recently a Memorandum of Procedure (MoP) was signed, which finalised the procedure to be followed by the two organs for the appointment of judges. The judiciary has only reaffirmed that the legislature’s role is merely suggestive and not persuasive. Moreover, behaviour and conduct of judges are above scrutiny, and even the impeachment procedure is quite complex and prolonged and has to go through both houses of Parliament.
It’s amusing and intriguing to note that Kalikho Pul, the former Chief Minister of Arunachal Pradesh, who had committed suicide, had alleged some senior Supreme Court judges of corruption in his suicide note. His allegations had also included in their ambit, the then Chief Justice of India JS Khehar. Despite moving the court, his widow Dagwimsai Pul had failed to elicit positive steps towards a transparent and unbiased investigation into the charges. What’s more, people against whom these charges hold, are continuing to set the law of the land. This is something which did not receive the media attention it merited. As if this opacity in judicial proceedings was not enough, judicial vacancies and pendency are taking a toll on efficient justice dispensation.
According to a study, it’s observed that if all the judges in the higher judiciary work 18 hours a day, every day, Sundays included, it would still take 33 years to clear the backlog of pendency! The Calcutta High Court Bar Association has created a record for observing the longest strike by lawyers. The afflicted people are thus forced to represent themselves in the court proceedings.
The recent breach of convention by the four senior-most judges of the Supreme Court, has heaps to say. Opening up to the press against the CJI Dipak Misra is unprecedented, and there must have been compelling events which have prompted them to take this radical step. Barely 200m from the CJI’s residence, four judges who are co-members of the Collegium, Justice J Chelameswar, Ranjan Gogoi, Kurian Joseph and Madan Lokur, in the lawn Justice Chelameswar’s residence, hosted a press conference and opened up their hearts and vented their angst and grievances to the press. This was a historic event.
Four maverick representatives of the Judiciary allege lack of due allocation of important cases to senior judges. Also, the mysterious death of Justice Loya, the Special CBI Judge hearing the ‘fake encounter’ case of Sohrabuddin, was an important cog in the wheel of this entire dispute. Public Interest Litigations have been reduced to mere shadows of the original, powerful tools they are meant to be. Thus, evidently, politics is creeping into the Judiciary, making the hoi polloi sceptical of its credibility, and Damocles’ sword is dangling dangerously over Lady Justice.
Needless to say, our judiciary is failing us. Still, when two people have a dispute, they tell each other, “I’ll see you in court!” Judiciary is the people’s last resort and an avenue of hope. Our country has several eminent and erudite jurists who have repeatedly stressed on judicial reforms, be it Ram Jethmalani or Soli Sorabjee, all of them have pressed for making the judiciary more accountable.
The seniority convention of appointment of Chief Justice, by which the next senior most judge becomes the Chief Justice, also needs to be reconsidered, because seniority alone does not ensure effective leadership. A transparent, egalitarian and answerable judiciary is in the best interests of the nation and is imperative for ensuring social justice. Thus, it’s not wrong to believe that judicial reform is the urgent need of the hour. Being above suspicion has not helped matters, so the best way forward is to plan for a better judicial machinery along with all other stakeholders in the administration.