| Published on 01-10-2007 In National | | Viewed 1475 times | | Written by
Girish Nikam | 
To start with a cliché, judiciary is one of the three pillars of a democracy. Therefore when the highest judiciary in a democratic country, the Supreme Court, comes under a shadow of doubt or suspicion it is a matter of great concern. The other two pillars, legislature and executive, can be taken care of, albeit with some effort, if it goes wrong, as there are instruments to deal with it. But we are yet to work out an effective mechanism to deal with this other pillar.
The concern gets more accentuated when a former Chief Justice of India gets embroiled in a controversy, like the retired Chief Justice of India, Y.K.Sabharwal has in the recent past. Of course since the matter is sub judice, it will not be prudent to discuss the case, except stating the fact that four journalists of Mid Day, a Delhi and Bombay evening daily, are facing a four months Delhi High Court jail sentence, which has been stayed by the Supreme Court. The "crime" committed by these four journalists, including two editors, and a cartoonist, is that they exposed the alleged wrong doings of Justice Y.K.Sabharwal, who when he was Chief Justice, passed judgements on sealing unauthorized shops and structures. These orders allegedly helped his two sons, who were partners of Mall builders in Delhi and surrounding areas.
Not going into the merits or de-merits of the allegations, as the Supreme Court is right now hearing the plea of the four journalists, one however can certainly look into the malady. Some time back, there was a very heated, but informed discussion about the state of affairs of the Indian judiciary, especially the top judiciary in the Central Hall of Parliament. As everyone would be aware, the Indian Parliament is dotted with some of the most distinguished names in the Indian Bar and Bench.
The discussion centred around corruption, which has crept into even the highest judiciary. Obviously no names can be mentioned, lest, one lands up, like the Mid Day journalists are poised to be, in the jail. But the consensus among the most distinguished jurists and lawyers was that we are witnessing a situation, which is not altogether a very happy one. Judges can be bribed, decisions can be manipulated, cases can be postponed indefinitely, and so on and on---- words of the top lawyers and jurists. Of course it is still not as endemic as it is in the bureaucracy.
What has gone wrong with the Indian Judiciary? For anyone who has observed Indian democracy at work, it becomes obvious that, like in most cases, the problem lies in the root. The root is the selection or rather the appointment process. In India, there are two ways of appointment. One is through the direct recruitments process, which is at the lower level of the judiciary. They go through the usual written exams, interview process and get recruited as judges in the lower level, which is below the High court and Supreme Court.
However the recruitment or appointment to the High courts and Supreme Court, as any one who is familiar with the process, is heavily politicised. Anyone with a familiarity with a Law Minister's office either at the State or Central level would have seen any number of lawyers waiting to pass on their resumes seeking appointment as judges. There is also a proportional system of promotions from the lower levels of the judiciary to the High courts, which also witnesses similar jockeying, which is backed by direct recruitment to the High Courts from the bar.
It is hardly a secret that very few top lawyers are willing to become judges of the High court, as they invariably feel that it is not worthwhile in terms of their earnings. So what we get in most cases, except for some honourable exceptions, of course, is second or even third, sometimes even fourth, best legal talent on the benches of the High courts, and subsequently the Supreme Courts.
What do you expect from a judge who has jockeyed for the position and has been obliged by a political party or a leader, when it comes to a case concerning the party or the leader? It was shocking to hear a conversation in the Parliament precincts, when a retired high court chief justice, who has chosen electoral politics, post-retirement, waxing eloquent about a leader of a particular political party, and praising the politician for his help, in furthering his (Judge's) career. If this is the state of mind of the judges, one can imagine what kind of judgements can be expected when a case concerning the patron comes up before a judge.
One keeps on hearing about how the judiciary can be fixed, and some lawyers, very senior ones at that, invariably with political connections, have specialised in it.
Of course, Indian judicial appointments, when compared to the one in United States, are not so brazenly political, and luckily the judicial appointments are not for life, as in the US. Nevertheless all the lacunas, which we see in the US system, are also found, in our system too. But we are yet to see a more brazen judgement, influenced by the political affiliations of the judges, than the one, which catapulted George Bush to the Presidency of the United States in 2001.
In all fairness to Justice Y.K.Sabharwal, though he is known as an appointee to the higher judiciary when the Rajiv Gandhi Government was in power, some of his judgments have caused maximum damage to the Congress, as a party.
But then the problem, which the higher judiciary faces in India today, is as much about corruption and nepotism, as it is about political interference. And many legal luminaries feel it is because of the quality of the judges we manage to get in to the higher judiciary. One of the biggest lacunas in attracting the best legal talent to the Bench is the kind of remuneration that they get. Why would a leading lawyer, who can bill Rs. 2 lakh for an appearance in the Supreme Court or even a High court,, agree to give it all up and become a judge at a salary of Rs.50,000 per month! Though there have been some very very honourable exceptions to this from Justice M.N.Venkatachalaiah to Justice Santosh Hegde, to name a few.
Despite the honourable exceptions, the crisis facing the highest judiciary, not to talk of the lower level, is something one better take note of, and try to work out solutions, lest we see further decline. All said and done, it is still the judiciary, which evokes respect and confidence in majority of the people of this country. The onus is on the judiciary now to work out the correctives and retain that confidence and trust. One cannot even imagine where we will be, if people lose that trust and confidence. Justice Sabharwal's case has provided that opportunity for the higher judiciary to find solutions by working out a effective mechanism to deal with corruption and nepotism in its midst. |
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