PUCL Bulletin, March 2004

What ails the judiciary?

-- By Rajindar Sachar

Overall the Judiciary seems to be on the right track but the journey is still long and hazardous.

Those belonging to the Judiciary are now no longer avoiding the question: What ails it? In the not so distant past, people in general attributed to the Judiciary qualities which could be emulated by the other arms of the state. But things have changed — so much so that a former Chief Justice of India was even provoked to say that 20 per cent of the Judiciary lacked integrity.
The Judiciary set in-house corrective processes in motion as a result of which even some High Courts Judges, previously thought to be beyond reach, had to resign. Though it would be rash to say that all is now well, some recent happening give heart that the Judiciary is playing its assigned role as a sentinel on the qui vive.

This was reflected in the Supreme Court intervention following the chorus of protest at the acquittal of all the 21 accused in the Best Bakery case by the trial court. The Gujarat Government had to yield. The confidence of the person in the street in the might of justice and the rule of law has revived.
Some years ago, the killing of the Christian missionary, Graham Staines, and his two sons in Orissa shocked the nation. An enquiry by a sitting judge of the Supreme Court failed to find a communal angle in the murder. A criminal trial began. Years rolled by and the public became cynical and despondent. And here again the Judiciary showed its resilience. A Sessions Judge convicted Dara Singh and other culprits.

Some months ago, all the Opposition parties were unanimous in demanding that the Centre get Parliament’s approval before privatising the oil majors, HPCL and BPCL. The stubbornness of the Executive in resisting such a demand was hard to explain. Surely the will of the people is reflected in Parliament — the Executive is a temporary incumbent, Parliament is the body, which is the voice of the nation. There is abundant public demand that the oil industry, which in modern days is the kernel for development of any society, should remain in the nation’s hands and not be parcelled out to private oil buccaneers, including foreign operators. Mass protests by political parties and trade unions made no difference to the Executive. All seemed lost when a public interest litigation petition in the Supreme Court restored to the people their democratic right to determine their future by giving this power to Parliament. When Parliament has spoken, the Executive must remain silent — its only function is to carry out the parliamentary directive. Is it not an irony that when the United States goes to war to control Iraqi oil, defying all norms of international law and conduct, a self-proclaimed ultra-nationalist Government is willing to let go of its control over such a vital resource without any compunction; and hand it on a platter to foreign private companies, seriously compromising our national defence?

For years there has been overwhelming public demand for laws for decriminalisation of politics. All parties, without exception, were united in ignoring this public outcry. Then a PIL by the PUCL led to the Supreme Court giving some directions in this regard. Again with rare unanimity all the parties tried to project it as an infringement on Parliament’s sovereignty. But this did not deter the Supreme Court from reiterating the position, and reminding the critics that: “Neither the Legislature nor the Executive nor even the Judiciary is superior. It is the people who are supreme...”.

But as in life, so in the Judiciary, all is not rosy. Thus we have the Supreme Court verdict denying Government employees the right to strike — a ruling that has pitted the working class against the Court.

Of course, the negative aspect of arrears and long delays and even 150 unfilled vacancies of High Court Judges (due to the non-recommendation by the Judiciary’s collegium) have cast a shadow on the effectiveness of the present legal system. We also have instances of superior courts sometimes using the power of contempt ignoring the warning given by Chief Justice Gajendragadkar: “We ought never to forget that the power to punish for contempt, large as it is, must always be exercised cautiously, wisely and with circumspection.”

Frequent or indiscriminate use of this power in anger or imitation will not help sustain the dignity or status of the court, but may sometimes affect it adversely. Wise judges never forget that the best way to sustain the dignity and status of their office is to earn respect from the public at large by the quality of their judgments, the fearlessness, fairness and objectivity of their approach, a view reinforced by V.R. Krishna Iyer. “If judges decay, the contempt power will not save them.”

Overall the Judiciary seems to be on the right track but the journey is still long and hazardous.


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