Judiciary has lost respect

During the Second World War, when Great Britain was losing on every front, Winston Churchill, then prime minister, wrote to the lord chancellor instructing him to ensure that the judiciary delivered justice. Surprised, the lord chancellor asked Churchill why he had made this request when his attention should be focused on stopping the advancing Nazis. Churchill replied that as long as Britons were guaranteed justice, they would fight for the country regardless of other setbacks.

Today, the confidence of the Indian people in their judiciary has been shaken. Two things have happened. One, the judiciary has been found wanting, and two, justice has been delayed. Chief justice P.N. Bhagwati said some two decades ago on the eve of his retirement that judicial corruption was growing by "leaps and bounds." Not long ago, retired chief justice S.P. Barucha also alleged that 15 per cent of the judiciary was corrupt. Judges and other luminaries have accepted the charge without murmur because they know that it reflects the general impression.

Leading lawyers have come out in the open to point a finger at certain judges. Bars have passed resolutions to that effect. Public opinion widely holds that people cannot expect fair judgment. The media have also reported that certain judges are not beyond reproach. Whether it be in Punjab, West Bengal or Karnataka, the protest against the corruption of judges is loud and open. The Supreme Court itself is in the dock because of allegations at the highest level.

The question is one of oversight. Who should oversee the judiciary? Obviously, the executive cannot do it. Otherwise, its own image would be tarnished. If parliament were to step in, the judiciary would be up in arms. The Constitution gives the latter the right to scrutinise legislation.

The judiciary works under a blanket of secrecy. When the Central Information Commission asked the Supreme Court to disclose complete correspondence and files on the recent appointment of three judges, it declined. Transparency is necessary for the functioning of a democratic system. How helpless the polity looks when the Supreme Court refuses to allow others to look into its conduct.

In fact, there is a question mark against many appointments to high courts and the Supreme Court. These appointments are made by the Supreme Court collegium, a body of three senior-most judges. If one were to go back in history, one would find that the central government was party to the messy situation that the country faces today.

Unfortunate interpretation

Under the Constitution, the government's consultation with the chief justice is essential before any appointment to the High Court or the Supreme Court is made. There came a time when the government was unhappy over the rejection by the chief justice of certain names it recommended. An obliging Supreme Court judge came to the rescue of the government by interpreting that "consultation" did not mean "concurrence." This made the chief justice more or less redundant because the government consulted him but did not consider it necessary to have his concurrence. After some years, the pendulum swung to the side of the judiciary. The Supreme Court would consult the government but did not think its consent was necessary.

The case of Karnataka Chief Justice P.D. Dinakaran has brought things to the boil. He is alleged to have taken possession of land that is government property. The collegium has recommended his elevation to the Supreme Court, but the government has refused to accept the recommendation. It has asked the collegium to reconsider its decision.

As per the convention, Justice Dinkaran's elevation is binding if the collegium re-endorses its recommendation. Were it to do so, the country would face a constitutional crisis. Reports suggest the collegium will not press its recommendation. This would, no doubt, avert a crisis. But this is not a permanent solution.

The other problem is that judgment is routinely delayed for years. There is a backlog of around 30 million cases. A person has to wait some 15 years for a judgment. In some murder cases, the verdict is yet to be pronounced even though the hearing was held more than a decade ago. The Cabinet has cleared a scheme to appoint 15,000 retired judges, and others who make the grade, to clear the backlog.

From the lower courts to the Supreme Court, it is a long legal haul. Some procedures, some debates, some discussions and some paper work can be cut out so that the pace quickens, without compromising on justice.

Judgments speak for the judges. But over the years they have learnt how to cover their tracks. Former chief justice J.C. Verma said: "If we [judges] don't question ourselves, the people may enact a law empowering something to question us." The judiciary is one of the pillars on which the edifice of democracy rests. The pillar is showing cracks. Parliament, representing the will of the people, needs to repair the pillar. Some remedial steps need to be taken. Only then will the judiciary sparkle once more.

Kuldip Nayar is a former Indian high commissioner to the United Kingdom and a former Rajya Sabha member.