Cash Found At HC Judge's Home: We Must Protect The Judiciary From Itself
The discovery of a large stash of cash in a High Court Judge’s residence has suddenly forced the nation to confront the ugly reality of justice delivery in India.
Over the years, there has been a widespread perception that all institutions of state are failing the people. In the early years of independence, people reposed enormous faith in our politicians. The freedom fighters who sacrificed a great deal became the first-generation leaders all over the country, and people trusted them. Centralisation of power and the misguided licence permit raj eventually proved that politicians were men of clay. Then people trusted the civil services. Whenever there was a scandal or crisis, all that a government had to do to pacify the public and legislature was to appoint an IAS officer to enquire. Higher officials could do no wrong!
As bureaucratic apathy, corruption and incompetence became evident, people started relying on the higher judiciary. The middle classes and media raised unrealistic expectations that the judiciary would solve all problems. Since the 1980s the higher judiciary started usurping the functions of the other organs of state.
Separation of powers, checks and balances, accountability and legitimacy of all state functionaries traced to people’s will directly or indirectly are at the heart of democracy. We need a strong, effective, independent, and impartial judiciary to render justice and protect constitutional rights. The notorious delays in our justice delivery have made a mockery of the rule of law. As a result, there is a market demand for criminals, who are functioning as undeclared judges. They deliver rough and ready justice, often with brutal methods, and settle disputes. Instead of performing its core functions, the judiciary has enmeshed itself in micro-management of routine executive functions and direct day-to-day monitoring of high-profile crime investigations. Over time, the judiciary made specious arguments and took over judicial appointments. Appointment in consultation with the Chief Justice of India became appointment by a collegium of senior judges. Parliament, thanks to partisan bickering, failed to exercise its oversight function and did not impeach and remove a single judge of the higher courts. Judges are now self-appointed and irremovable. Any self-appointed, permanent priesthood with no accountability to a mortal soul is bound to degenerate over time. As justice became inaccessible and expensive, the legal profession became highly remunerative for competent lawyers. As a result, it became difficult to attract the best lawyers into the judiciary.
There are outstanding judges at all levels – trial courts, High Courts and the Supreme Court. But many in the judiciary are falling short if you judge them by competence, integrity and commitment to public good. This is a dangerous situation for the republic. If people lose faith in the judiciary and due process too, all that remains is anarchy, and might will become right.
We are an extraordinarily diverse and fractious country. The political process, despite all the imperfections, somehow is reconciling conflicting interests and maintaining a semblance of peace and harmony. But notions of citizenship and rights and responsibilities have not yet taken deep roots in our society. We are still easily swayed by emotions and primordial loyalties. In such a society, a partisan and fiercely competitive political system tends to polarise issues and cannot reconcile conflicting interests. And the rough and tumble of politics does not allow the fine balance needed between competing objectives—say, equality before law and special provisions for the advancement of deprived sections. That is why people are content to leave contentious issues like the Rama Janmabhumi dispute and reservations to the courts. If the public confidence in the judiciary is undermined, it will derail the Constitution and imperil our democracy.
It is time we took a fresh look at the appointment of higher judiciary and created a robust mechanism that draws legitimacy from people’s will and yet ensures impartiality, constitutionalism and competence in the judiciary. Parliament should start exercising its function disciplining and removing errant judges who are unfit for office. Weeding out corrupt judges will enhance the prestige of, and trust in, the judiciary. We need to create a permanent mechanism to deal with credible complaints against sitting judges. And we need to attract the finest young minds into the judiciary.
In our constitutional democracy, all organs of the state—executive, legislature and judiciary—need to function well and in harmony in the service of the people. Self-aggrandisement of one organ and denigration and revulsion of other organs are recipes for disaster. We need to restore constitutional balance without undermining the prestige and legitimate constitutional role of the judiciary. An independent, effective and accountable justice system is a critical element of democracy. The executive, legislature and judiciary must act together to protect the judiciary from itself.
The author is the founder of Lok Satta movement and Foundation for Democratic Reforms. Email: drjploksatta@gmail.com / Twitter@jp_loksatta
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