Courts also need a Lokpal
Without judicial reform, one of the pillars of our democracy will continue to crumble
This being said, there can be little doubt that the judiciary, in spite of its exemplary conduct on several matters of national importance, is in crying need for reform; it is that nothing substantive has been done about this for so long. Just two days ago, a bench of the Supreme Court expressed "anguish, agony and concern" over indiscriminate adjournments given by a Punjab trial court in a bride-burning case, which prolonged the process of examination of witnesses to more than two years. The bench's observations are exceptionally relevant. Some 2.7 crore cases are pending in the district and subordinate courts; close to 50 lakh cases remain undecided in the high courts; and some 50,000 cases await disposal in the Supreme Court.
In the face of these dismal statistics, there were as many as 3,422 unfulfilled vacancies in the district and subordinate courts, and 276 in the high courts (out of a sanctioned strength of 895). As many as six high courts in the country were without full-time chief justices because the Supreme Court collegiums had failed to make any recommendations for the post.
The appointment of senior judges, through in-house collegiums within the higher judiciary, is exceptionally insular. The second Administrative Reforms Commission report states bluntly: "India is unique in the degree of judicial control over judicial appointments. In no other country in the world does the judiciary appoint itself." There is no reason why a Judicial Public Services Commission, on the lines of the UPSC and manned by retired senior judges, cannot be mandated to transparently ensure that all vacancies are filled in time, at least in the higher judiciary.
A second problem is the corruption within the judiciary. This has been acknowledged by judges themselves; former Chief Justice of India (CJI) V N Khare had candidly admitted that corruption in the judiciary is rampant and bribes for bail are endemic. Judges of the higher judiciary can be removed only by impeachment, and the process, requiring parliamentary endorsement is so cumbersome that no judge has been impeached so far.
It is in the interests of the judiciary itself to insulate itself from corruption. In response to an RTI query, the justice department of the law ministry revealed in April, 2012 that in the last year it had sent as many as 75 complaints of corruption against serving judges of the Supreme Court and high courts to the CJI or the chief justices of the respective high courts for "appropriate action", but remained unaware if any action had been taken on the complaints. The judiciary must accept that independence and accountability are two sides of the same coin. The time is ripe for the judiciary to have a Lokpal for itself, which works transparently as a watchdog with investigative and prosecution powers.
The subject of judicial reform has been contemplated for a long time now. The latest addition to efforts in this area is the Judicial Standards and Accountability Bill. It is an anaemic and ill-considered legislation with several major problems. First, the Oversight Committee proposed by it has no real powers except to pass on a complaint to another layer, namely the Complaints Scrutiny Panel. This scrutiny panel is to consist of three members, two of whom will be sitting judges of the same court as the judges against whom the complaints have been made, clearly an unfair and unworkable proposition.
Second, the composition or the modalities of the investigation team is undefined. Thirdly, the penalties are merely in the form of advisories or warnings or, at best, a recommendation of removal to the president. Fourthly, the Oversight Committee consists of the Attorney General (how can someone who regularly appears before judges, including possibly the one being investigated, take an objective stance on the accusations made). Fifthly, the Bill has no mention of a vital area of reform, viz, the procedure for the appointment of judges. Sixthly, the entire lower judiciary is kept out of the ambit of the Bill. And seventhly, the Bill evokes an atmosphere of total secrecy to proceedings, going so far as to exclude the operation of even the RTI.
In addition, there must be a much higher degree of supervision and monitoring of the judicial system by the higher judiciary. Article 235 of the Constitution gives high courts control over the subordinate judiciary, and this is a responsibility which, given the manifestly tardy pace of judicial proceedings and the alarmingly high number of pending cases, the Supreme Court must ensure actually takes place.
To raise these issues is not to devalue the respect the judiciary deserves or to prompt an assault on its independence. However, the truth is that in its rightful pursuit of judicial independence, the judiciary has largely escaped any investigation into its own functioning. In fact, the bar of accountability and performance must be, if anything, even higher for the judiciary, because justice unethically subverted or unacceptably delayed is justice denied.
The writer, an author and former diplomat, is currently adviser to the Bihar chief minister. Views are personal.