LEGAL

GUEST COLUMN: Urgent reforms needed to cleanse judiciary

supreme-court-pti29317 Supreme Court of India | PTI

In India’s evolution as a dynamic democracy under the rule of law, the judiciary played a significant role. This was possible because of the Constitutional protection of the independence of judiciary, the unqualified trust people reposed on judges and the respect given for judicial decisions by the other two branches of government. All those factors have now been put in jeopardy as a result of suicidal tendencies of a few judges and irresponsible conduct of a few lawyers in dealing with judicial proceedings. This is a crisis created by lawyers and judges. 

Even before the nation could recover from the scandalous episode involving Justice Karnan, the shocker of downright corruption allegedly involving some retired and sitting judges has surfaced resulting in ugly scenes in the apex court on November 9-10 this year. The CBI arrested a retired High Court judge on a matter relating to corruption in medical college recognition in which a few sitting judges are also allegedly involved. The Chief Justice constituted a bench to handle the matter. On the same issue, another bench of two judges heard a second petition, apparently without the knowledge of Chief Justice, and ordered the matter to be heard by a Constitution bench which the judges named themselves in their order. On hearing about it, the Chief Justice, sitting on a Constitution Bench (of five judges), cancelled the order of the  two judges bench and constituted another bench of five judges excluding the two judges who allegedly usurped his exclusive jurisdiction. In a spat that ensued between senior lawyers and the Chief Justice in open court as reported in the media, the public got the image of a court sharply divided on matters of judicial propriety, Constitutional morality and personal integrity.

Though corruption in judiciary was not unknown in the past, nobody believed that it could reach the Supreme Court in such a proportion as alleged in the present case. Reform is urgent and can brook no delay. The two major legislative measures which the UPA government initiated and the present government followed up need to be re-visited and enacted early with appropriate changes. An Act with a constitutional amendment setting up the National Judicial Appointment Commission earlier shot down by narrow majority by a Constitution  Bench should be re-enacted early keeping primacy to the Judiciary. One way of preventing corruption is to ensure that people of integrity alone are appointed to the high bench. A transparent and participatory procedure alone can ensure that result. That was the view of the minority judge in the NJAC case as well. If the modified Act is again challenged in court, let the government insist on the matter being heard by the full court of all thirty one judges. Let collective wisdom of the entire court prevail if the will of the people and the text of the Constitution were to be overruled through judicial review in such an important issue.

Another legislation awaiting Parliament’s consideration is the Judicial Standards and Accountability Bill, 2012 passed by Lok Sabha but lapsed in the Rajya Sabha. It incorporates standards to be followed by judges, assets and liabilities to be declared by judges and processing of complaints of misconduct against judges including penalties to be imposed (short of impeachment) on erring judges. The in-house systems which now prevail is a mockery of fair procedure, the details of which is known only to judges. Judicial independence is about personal integrity, freedom from bias  and external influence in judicial decision making. The Constitution makers did not explicitly provide for these qualification because they felt those who came to occupy the high position in the judicial system can be presumed to possess these qualities in good measure. They are now proved wrong in making such a presumption. The Accountability Bill with suitable amendments should soon become a law to save the judiciary from judges who do not deserve to be in the temple of justice.

Finally, Judiciary cannot be protected from corrupt elements unless dishonesty and misconduct on the part of lawyers are effectively curbed. The present mechanism for disciplining lawyers is unable to deter corrupt elements in their fold. As the chairman of the Bar Council of India conceded, a high proportion of advocates enrolled by them and are in practice are fake degree holders who make money through cheating and corruption. It is possible that some of these fake lawyers have got into the judiciary as well. The government should revise the Advocates Act to ensure competence and character in the profession as well.

Administration of justice is too important a task to be left to lawyers and judges alone. 

The author is a legal educator and former director of National Judicial Academy. The views expressed in this article are solely those of the author and do not necessarily represent the views of the publication.

This browser settings will not support to add bookmarks programmatically. Please press Ctrl+D or change settings to bookmark this page.
Topics : #judiciary

Related Reading