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India: Ostrich on the Bench

by Bobby Kunhu, 25 November 2009

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The distance between the portrayal of the courtroom in popular Indian cinema and the reality of the courtroom is almost unbridgeable. As a corollary, judges are rarely portrayed in negative roles as against the plethora of “evil” politicians, bureaucrats, lawyers and policemen. This is probably a reflection of the larger denial in public spaces of role and context of the judiciary in the Indian polity – displaying ostrich-like behavior – where we believe that what we do not see does not exist. An assumption that somehow forgets that inevitably it is always lawyers that become judges!!

If the quantum of collective silences is taken into account then the judiciary must exist in a complete social vacuum in a country, where corruption is a way of life and has been ranked 85th in the corruption perception index by transparency international. But unfortunately, as anyone who has had the briefest brush with the judicial system can vouch nothing can be farther from truth. I know of an upper middle class entrepreneur from Bombay who has turned to full time activism because of a single brush with the law! The judiciary without doubt is designed under the Constitution to be as much an integral part of the Indian political society as the legislature or executive. Despite the relative lack of transparency, the process of selection and upward mobility in the judiciary is very much political. Judicial trends respond, reflect, engage and influence politics. And corruption that is an integral part of the political life of the nation afflicts the judiciary as well. But a seemingly entrenched insularity has kept this out of public discussions. But this insularity has also meant that the as an institution, the judiciary has not managed to keep pace with the evolutionary processes of the other branches of government. The most obvious evidence for this would be the gross under-representation of Dalits and women in the higher judiciary.

So what explains this insularity? Let me present a few reasons that immediately come to my mind with the caveat that this is not an exhaustive analysis. Firstly, in terms of continuity, the judicial institution was the least affected in the transition from the 1935 Government of India Act to the Constitution. This meant that many of the traditions, rituals and privileges that constructed judicial insularity were uncritically carried forward The black coat, gown and the band are the most visible testimony to this. The colonial legacy also includes the structure of the language used in the courtroom – legal documents continue to be drawn in archaic English from the Victorian era. All of this is compounded by the attitude of the higher judiciary in protecting their privileges. This is more so when one of their “brethren” is subjected to critical scrutiny.

Recently, an eminent public interest lawyer was hauled for contempt of court proceedings for pointing out that Justice Kapadia, who passed orders in the Vedanta case held shares in Sterlite industries. Obviously when a senior lawyer can be taken to task, laity that does not understand legal intricacies can only be expected to tread with caution. Of course, there are instances of judges recusing from cases on their own even when conflict of interest is not pointed out – like Justice Raveendran – but exceptions always point to the need for the rule.

Moreover, even in the few instances, where sufficient evidence is marshaled against a sitting judge – the efforts come to naught. In the only case where impeachment proceedings were initiated against a sitting judge of the Supreme Court – political diktat, rather than democratic conscience saved the day for the judge, despite the fact that the Committee appointed under the Judges (Inquiry) Act headed by Justice P. B. Sawant found the allegations true. The reluctance to raise issues of integrity has to be seen in the light of the fact that the only recourse against errant judges of the higher judiciary (High Courts & Supreme Court) under the Constitution is impeachment under Articles 124 & 217, whatever might be the truth of allegations

In that context it has been opportune that the controversy around the elevation of Justice Dinakaran to the Supreme Court surfaced alongside the ongoing debate on whether the higher judiciary can be subjected to the provisions of Right to Information. Act and the Supreme Court Judges resolution to voluntarily declare their assets. This is definitely a shot in the arm for all those who have been demanding judicial reforms towards more transparency and accountability. Efforts of the New Delhi based Forum for Judicial Accountability and Judicial Reforms has been pivotal in bringing this debate into the forefront. The demand for increased transparency has also come from former Chief Justices. But somehow, judicary seems to be reluctant to let itself be scrutinised by a public or democratic gaze – in other words – there is a reluctance to subject itself to legislative checks – like the Right to Information Act – hiding behind the façade of self-regulatory mechanisms like the Bangalore Principles of Judicial Conduct, 2002.

Now that the Dinakaran episode is behind us, the insularity of the judiciary in the larger discourse of corruption can be located squarely within judicial reluctance itself. Apart from former eminent members of the Judiciary, the Commission to Review the Working of the Constitution, the Dinesh Goswami Committee on judicial reforms and other bodies has stressed the need for effective measures to deal with judicial misdemeanor and have even recommended punitive correctives in the higher judiciary.

There can be absolutely no doubts in so far as the role of the judiciary in preserving the democratic ethos of the Indian Constitution. But Judges are also human beings and this role can continue to be more effective only when judicial integrity can stand to public scrutiny. Before other episodes of corruption or misdemeanor can crop up, it would be extremely graceful – if the higher judiciary itself takes a lead in the process of setting up verifiable transparent processes that provides adequate constitutional checks – through existing legislations or if necessary new ones. I do not think anyone needs to remind the Supreme Court or the High Courts – as the most important guardians of the Constitution – that fundamental legal maxim that Justice should be seen to be done.