JUDICIARY that is perceived to be the only organ of the state that still enjoys a lot of credibility and public trust is passing through tough times. Alleged cases of corruption, nepotism and indiscretion against judges of the Supreme Court, involving even former Chief Justices of India, are surfacing on a daily basis. Impeachment proceedings – the second during the last 60 years – are on against a High Court judge for having embezzled public funds as a lawyer. While the fate of the impeachment proceedings is unpredictable, this case has thoroughly exposed the fault lines in the system of appointment of judges to the superior judiciary and inadequacy of our system of investigating the background, social philosophies and judicial competence of persons appointed to superior judiciary. Worse, a former Chief Justice of India has been publicly accused of allowing his sons to run their businesses from his official residence and issuing judicial orders in cases pertaining to the demolition of commercial properties in Delhi that might have helped the businesses of his children. A public spat between Justice H L Gokhale, former Chief justice of Madras High Court and now a judge of the apex court, and Justice S. Raghupati, a former judge of the said High Court with former CJI KG Balakrishanan over “protecting” the disgraced Union Minister, A Raja, in the case of an attempt to interfere with judicial process has done no good to the reputation of the former CJI. Justice Balakrishanan’s explanation that A Raja’s name was not mentioned by Justice Gokhale in his report to him has been contested by Justice Gokhale saying he had in his report mentioned the enclosures that carried the name of the former Union Minister.
This is not the only embarrassment for Justice Balakrishanan. There are serious allegations that his son-in-law and brother had amassed property worth crores of rupees during his tenure as CJI. Former Supreme Court judge V R Krishna Aiyer, a crusader for judicial accountability, has urged the Parliament and the Prime Minister to appoint a high powered commission to enquire into the alleged nepotism of the former CJI. A Malayalam TV channel alleged that P V Sreenijan married to the daughter of the former CJI had in his affidavit to the Election Commission (at the time of his filing nomination papers as a Congress candidate in the assembly elections) stated that he owned no landed property and had a bank balance of only Rs 25,000. Yet Sreenijan had during the last four-year amassed huge wealth under “suspicious circumstances due to dubious linkage with the former CJI”.
Describing this issue as “atrocious”, Aiyer wrote to the President of India to politely ask Justice Balakrishnan to quit the office of the Chairman of the National Human Rights Commission that he took over days after his retirement as CJI. The controversy over the conduct of the former CJI has also raised questions about the desirability of a law prohibiting appointment of retiring judicial officers to any office of profit.
Justice Aiyer has also raised pertinent questions about the lack of transparency in the appointment of high court judges and their promotion to the apex court and maintained that these are based on “fancy” of judges constituting the collegium. He regrets that there is no investigation into their track record, academic excellence or judicial performance. Those who ought to know say appointments and promotions are, by and large, nothing but deals in which the Union Law Minister has his way in some cases while the remaining appointments/promotions are shared by members of the collegium. Merit is the first casualty and occasionally even those whose integrity is not above board get appointed. Calcutta High Court judge who is now facing impeachment proceedings is a case in point. The collegium system is a judicial creation and the syndrome of the personality cult that lacks any accountability. The system is flawed and must go. The Government is proposing to bring in a law to lay down the procedure for appointment of judges to the high courts and their promotion to the apex court. It is an extremely sensitive issue and it would be better to evolve a political consensus before rushing in to enact a law. Further, there is an urgent need to set up a Performance Commission on the lines of one that exists in several states of USA. A code of conduct for judges will also be in order. Impeachment being an extreme remedy can’t be resorted to in each and every case of alleged impropriety or misconduct. An effective mechanism to ensure judicial accountability with well laid down and time-bound procedures is the need of the times. Any action against a judicial officer must be taken discreetly and soberly so that the dignity of the judicial system is not affected.
Besides corruption and nepotism, another infirmity from which the judiciary suffers is the lack of restraint exercised by judges in some of their judgments. This is not to deny the fact that the Supreme Court has in the last six decade made profound pronouncements on issues of great significance for the nation and society. Yet, on several occasions, judicial activism drove judges to issue orders that were beyond their scope and some of these couldn’t be implemented.
Judiciary is also under attack for encroaching upon the domains of other instruments. A case in point is the Supreme Court’s observation on the creation of Central Vigilance Commission (CVC) as an autonomous agency. The intention of the apex court was laudable but questions were raised about the desirability and the authority of the apex court to direct the Parliament on the contents of the proposed legislation.
Judiciary must resist the temptation to encroach upon areas beyond its domain if it were not to invite a conflict with the legislative and executive wings of the state.
Another disturbing trend is to make profound pronouncements on complicated issues that should better be left to the experts. The Supreme Court bench comprising Justice Markandey Katju and Justice Gyan Sudha Misra delivered an excellent judgment one torture of Nandabai, belonging to a scheduled tribe, but dwelled into areas that are better left to archeologists, historians and anthropologists. In an obiter dictum the bench rejected the perception that Dravidians were the original inhabitants of India and projected the thesis that India is largely a country of old immigrants and that pre-Dravidian aborigines were the ancestors of “Adivasis” or Scheduled Tribes. India, the bench observed, is a country of immigrants, like North America. It endorsed the faulty and now rejected Aryan invasion Theory. It completely ignored archeological findings during the recent decades that have established that India is the original home of Aryans. True, the Aryan Invasion Theory is still a subject of animated debate among scholars, historians and archeologists. The learned judges need to refrain from taking sides on controversial issues that relate to national identity and social harmony. The issue was neither contested nor argued in the said case. The tendency to cross the Laxman Rekha to make profound pronouncements beyond the purview of the case must be resisted if the judiciary is to retain the trust and confidence people have in the judicial system.