PUCL Bulletin, May 1981

Judiciary Under Attack

The threat to the independence of the judiciary by the executive today is greater than ever before. The division in the bar and the judiciary itself has contributed consider-ably to the steady erosion of its independence. This was generally agreed upon by the participants at a discussion organised jointly by the Citizens for Democracy and the People's Union for Civil Liberties in New Delhi on April 16, 1981 on the subject of 'Transfer of Judges'.

Mr. Sorabji, former Solicitor General said that it was his "considered opinion" that "never has there been a greater threat to the judiciary than now and what was worse is that the people are taking the daily assault on the dignity' of the judiciary without a protest". He vehemently criticised the whole. business of using transfers as a threat and described the holding back of confirmation of additional judges as a "shocking outrage"

He said the greatest danger was public apathy and added that it was necessary to remind oneself again and again that Mrs. Gandhi had consistently and repeatedly attacked the independence of the judiciary. "Today the most virulent form of Press censorship is taking place in Assam and the danger is that during the Emergency we were aware of this but today we are not," he said. The National Security Act was being used against leaders of mass movements and men like Niyogi who were leaders of poor workers, he said.

He criticised Ministers for their "daily vilification" of judges and described as "shocking" a circular by the Law Minister to various Chief Ministers asking them to get the "consent" of additional judges that they are willing to be transferred. He said that this amounts to a plain threat that judges must consent to be transferred or face the prospect of not being confirmed.

Prof. Upendra Baxi of Delhi University said that every major institution of India is today facing some sort of crisis. He said there had been a steady decline in the legal profession and at the same time, the people had begun to expect more and more justice. He strongly criticised "the lobbying by members of the bar with Ministers for and against judges" and "the acceptance or vice-chancellor-
ships and ambassadorships by superannuated judges". The Indian bar has never protested against long delays in the appointment of Chief Justices that have resulted in piling up of court cases, and sitting judges accept commissions of inquiry which, they know, will result in monstorous heaps of paper and add to the backlog of work, he said.

Prof. Baxi agreed that the executive's assaults on the judiciary should be resisted by the bar and by the public at large.

Mr. Arun Shourie, General Secretary of PUCL, referred to Mrs. Gandhi's propaganda that the courts were obstructing social justice. "I would like to ask which judgement has come in the way of the government fulfilling the directive principles of State Policy?" he said.

He said that the judicial system as a whole is losing its legitimacy and the people no longer look upon courts as places where they can get justice. He pointed out that during both the Janata and Mrs. Gandhi's regimes important cases were withdrawn and there was no protest against this even by the judges themselves. For example, it is reported that in an MP's case, 560 cases against him were withdrawn. Mr Shourie also referred to the corrupt practice of judges who have their close relatives as practising lawyers in their own courts who "fix cases". He added that in such cases the judges themselves should come forward to seek transfers.

Mr. V.M. Tarkunde, President of the PUCL, said that although theoretically the legislature is supposed to control the executive, in a modern State it is the executive which controls the legislature. "We need a strong and indepen-dent judiciary as there is no other authority which can check abuse of power.

Mr Tarkunde demanded that in the matter of appoint-ments, transfers and promotions, the executive should have no hand. Appointments, he said, should be in the hands of a committee of judges.
Protest resignations by independent judges, he felt, were not to be welcomed and, in fact, "we are trying to persuade the judges not to resign in a huff as a result of the humiliation heaped on them by the government".

He blamed the colonial pattern and the lack of consti-tutional safeguards in India in. the context of appointment of judges to the higher courts.

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