PUCL Bulletin, April 2004

Changing role of the Indian judiciary

-- By N.S. Venkataraman

In the traditional concept of judiciary, the judge is depicted by an image, where the eyes of the judge are covered by dark cloth with hands holding the balance. This obviously means that the judges are supposed to have a very open mind on every issue without having any personal opinions at all.

Further, this also implies that the judges would not allow themselves to be influenced by the events happening around them. Traditionally, it was thought that the judges should live in some sort of isolation, so as to preserve a mind that will be open and remain unprejudiced under any circumstances.

Rightly or wrongly, Indian judiciary has now come to play a very vital role in influencing the various aspects of the administration and governance of the country. At one time, it was thought that the role of judiciary is only to interpret the laws and regulations and provide judgements exclusively from the legal point of view. This perspective regarding the judiciary has undergone sea change in recent times.

Unlike in the past, judiciary is now entertaining a number of subjects which do not merely involve legal issues but also the issues relating to administration, governance and personal life style of individuals.

There are many judgements given in recent times, which have no legal bearing but largely constitute the views and opinions of the individual judges. Perhaps, this is the reason as to why a number of judgements are reversed and re reversed in the higher courts. For the same reason, judgements have become unpredictable, making one to think that not only one needs to know the law but also to know the perspective of the individual judges, to anticipate with reasonable accuracy as to what sort of judgement would be coming.

Further, in recent times, one also comes across a number of observations of the judges, particularly during the hearing stages, which are not judgements but severe indictments of one party or the other by way of opinions and views. Pronouncements have also been made by the judges during the hearing stage which are not based on the arguments made during the hearings but based on the information available to the judges from press and media or other sources. Many wonder as to whether observations can be made by judges during the hearing which may amount to ‘pre judging’ the case.

However, most of such observations and even some of the ‘suspect judgements’ have not been strongly criticized in the media and the public forums, since many people appear to recognize judiciary, as the only forum available to checkmate the bureaucracy and the politicians in power.
The widespread disapproval of the many acts of politicians and bureaucrats has created a scenario where the judiciary is readily accepted as the system that could fill the vacuum.

In other words, judiciary is now going through a phase of revolution in the country and judges are having a larger than life image. The responsibility vested with the judiciary has also gone up by leaps and bounds, as judiciary appears to have the ultimate say in all matters.

With such expectations, it is vitally necessary that the quality of judiciary in the country should be substantially improved. Obviously, this means that the selection process and promotion process for the judges should be made more transparent, stringent and based on well established parameters.

Today, unfortunately, an impression is gaining ground that the judges are appointed by the politicians in power in the government, in a some what arbitrary manner and somewhat based on narrow regional and even caste considerations. While one would not know the extent of truth in such suspicions, the very fact that such suspicions exist at least in some quarter make the situation disturbing.

The Government of India should examine the feasibility of creating an all India Service for judicial officers in the same manner as that of IAS and IPS officers, so that there would not be any arbitrary method of selecting and appointing judges.

While the judges now command considerable prestige and respect in society, one cannot deny the fact that several of the judges have been caught in corruption charges in recent times. Many vague allegations have been made against several of the judges, which could create a bad image in the course of time, which should be avoided, particularly in view of the vital role expected of the judiciary.

A system for inflicting severe punishment without loss of time on the erring judges should be thought of at every level including in the apex courts. Judges cannot be allowed to have a feeling that they can get away from law, since they sit on judgements on the issues relating to law.

The quality of the judges has to be maintained and protected at the highest level and they should be made to observe several restraints, which are called upon because of the nature of the duties that they discharge.

In the earlier days, judges used to avoid situations, where they could be even unwittingly seen in the undesirable company. This is no more so, as judges readily take part in several public functions and social events, where they could come in contact with even criminals and politicians and bureaucrats facing corruption charges.

The protection of the quality of the judges is now the most vital need of the day. -- (E-Mail, 14-3-04)


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