Sunday, February 14, 2010

State of the Indian Judiciary

The people of India always had a very high regard for the judiciary, at least for the higher judiciary (read Supreme court). It was perceived as the last resort of justice for anyone including the poor. Some of the legal innovations such as PILs (judicial activism) captured the imagination of the common public. It was a delight to watch the the judges treat the executive with contempt forcing it to take steps that it would have never taken. Be it the introduction of CNG buses in Delhi to reduce pollution, ordering the closure of industries that harmed the fragile environment or setting up night shelters for the homeless, the high courts and the supreme court played a great role. The supreme court is also known to broadly interpret the article 21 (Right to Life) to ensure basic facilities (shelter, drinking water) for the common man. With the ever increasing activism of the courts, they are bound to be held in high regard in the near future as well.

But there is this other side of the judiciary that is worrisome. According to some, it is increasingly getting insensitive to needs of the the poor, non-transparent, sloth and corrupt(at least at the lower levels). Many recent episodes have given credence to this view. If the justice Nirmal Yadav episode and the Ghaziabad PF scam exposed the corruption in the judiciary, the initial reluctance of the judges to declare public their assets and non transparent nature of working of the supreme court collegium has only raised questions about its accountability to the public. In addition, we have this average backlog of 15 yrs of cases that demonstrates how inefficient it has become over time. At this point, it is imperative to list some of the concerns that people hold about the judiciary.

1. For most, especially the poor and those residing in regions far away from Delhi, access to supreme court has become very expensive. Sometimes, they spend a lot of money to reach the SC only to find that their case had been postponed. It is advisable to open more cassation benches in various regions of the country to solve this inconvenience. However, latest reports suggest that the judiciary is averse to this recommendation. God only knows why!

2. We need a transparent manner by which judges are elevated to the higher judiciary. Preferably a national judicial commission consisting of eminent people from all walks of life need to be set up. This body should also be entrusted with the promotion of judges.

3. A separate body or the above one could act as the institution to receive complaints from the public regarding any grievances associated with the judiciary. If only such a body existed, revelations about Mr. Dinakaran would have been out in the public domain even before his proposed elevation.

4. Transparency is the key to effective governance. Unfortunately, the judiciary considers itself above everyone when it comes to subjecting itself to intense scrutiny from the public. The reluctance of the supreme court to bring itself completely under the umbrella of the RTI has been disappointing. In this regard, the recent judgment of the Delhi court that the CJI comes under the ambit of RTI has been a silver lining. I only hope the the SC doesn't appeal the case and end up judging its own cause.

5. It has been observed that cases handled by the top advocates have a greater chance of moving through the system quickly. So much for a state that professes social justice.

6. The SC, of late, has increasingly ruled against the poor and the workers. This has been observed recently by none other than a couple of SC judges - Mr. Ganguly and Mr. Singhvi.

7. Increasing allowance of Special Leave Petitions has been one of the major causes of the huge backlog of cases. SLPs let the litigants prolong the duration of the cases. Note that it is only the rich that can afford lengthy litigation processes. Also the SC tends to produce conflicting precedents. This only encourages the lawyers to try their luck at the SC.

8. There is an increased concerned about the quality of judgments delivered by the lower courts.

9. Corruption in the judiciary is a major concern. It is difficult to remove the judges through the impeachment process. Evidence? Since independence, not even one judge has been impeached. We need to set strong deterrents so that judges behave in an honest manner. Also not everyone who censures the judges should be held for contempt. This process has to be resorted only in extreme cases.

10. Of late, there have been concerns that the judiciary has encroached upon the sphere of the executive and the legislative(via PILs etc).

We need urgent measures to save our judiciary from losing credence in the eyes of the common man. This is probably the only branch of the government that people still trust. We need to restore faith in this great institution for a better India. Jai Hind!