The National Lawyers’ Campaign For Judicial Transparency And Reforms

The National Lawyers’ Campaign For Judicial Transparency And Reforms

11/08/2014 by Kanoonreview Team

1. The campaign for transparency and accountability organized jointly by our Association and National Peoples Campaign for Judicial Transparency and Reforms is the first ever of its kind since independence. It is unique since the campaign is led by lay people and very ordinary lawyers since they felt that in order to bring in at least a modicum of fairness and accountability in judiciary, not to speak of regaining the past credibility which the institution of judiciary enjoyed in this country, it has become imperative for the ordinary people to come into the forefront, a campaign for it. With an apology, it must be said that for decadence of the judiciary, nay, the administration of justice in this country, the third wing of the State, the cause is that its affairs are entirely left to lawyers and Judges and that too the celebrated lawyers and Judges of the higher judiciary and they holding the fort as their private domain. This has led to ridiculous results. The most respectful, nay, the celebrated voices of the legal profession like Fali Nariman, Soli Sorabjee, P.P. Rao, Venugopal, to name a few, moving the Supreme Court canvassing a proposition that Judges should appoint themselves, nay, even if they do not exactly ask for that, then by wholeheartedly supporting the judgments of the Supreme Court in Judges-2 and Judges-3 cases have brought in such a ridiculous proposition, with the sole exception of Justice Krishna Iyer. This has led to a scenario where almost 60% of the appointments to the august office of Judges of the High Courts being cornered by kith and kin of Judges and many a families like Mujumdars, Dharmadhikaris and half a dozen members of a single family as Judges of the High Courts, with former Chief Justices and Judges of the Supreme Court managing to secure their sons and nephews appointed as Judges even at the age of 40 years, so that their progeny could reach the office of the Chief Justice or Judge of the Supreme Court or even as Chief Justice of India. It has also led to a situation where High Courts, independent institutions, which are not subordinate to the Supreme Court, except that the Supreme Court is a Court of appeal against the orders of the High Courts, are reduced as subordinate Courts where the Chief Justices, apprehensive of their elevation to the Supreme Court, as Chief Justice U.L. Bhat has lamented in his autobiography, resorting to all sorts of means to please the senior Judges of the Supreme Court, who constitute the collegium.

2. Since Rajiv Gandhi’s days, the country did not have a real executive, a Prime Minister who is confident of his authority, which meant gross abuse of a jurisdiction called PIL intended to enforce private rights of individuals who cannot approach the constitutional Courts for reasons of their poverty, illiteracy and other deprivations where a public spirited person acting pro bona is permitted to prosecute their cause and the High Courts and the Supreme Court intruding into the domain of the executive and the legislature and acting itself as the executive and the legislature by substituting itself decide issues affecting the public at large without notice to and hearing them, with the result thousands of slums are demolished, water and electricity connections are disconnected to them, slums set up prior to 1st January, 1995 are not to be regularized etc.

3. Yet another ridiculous this is the ruling of the Supreme Court that no First Information Report shall be registered against a Judge of the Supreme Court or a High Court, be the offence alleged is corruption or molestation, without least intending to say that Judges commit such offences. While the Judges abrogated to themselves (is it usurped to themselves?) the domain of the executive and legislature, tore the Constitution, invented a mechanism where they could appoint themselves, destroyed the institution of High Court, bringing a situation where the High Court Judges scramble to please the senior Judges of the Supreme Court to clear their elevation to the Supreme Court, the Supreme Court did nothing to discipline the errant Judges or to provide for a mechanism for addressing the ever-growing grievances of the public at large, lawyers and litigants of the gross abuse of power, misconduct, corruption, incompetence and the common complaints of the litigants and the bar of excessive interruption and threatening of lawyers, litigants and other improper behaviour of the Bench, except the so-called “in-house” mechanism known as Charter/Resolution called the “Restatement of Values of Judicial Life” passed by the Supreme Court of India in its Full Court meeting held on May 7, 1997, which was ratified and adopted by Indian Judiciary in the Chief Justices’ Conference 1999. All this led to great erosion of the peoples’ faith in the Supreme Court and High Courts as impartial, independent, fair and people-friendly democratic institutions and the Bar of the Supreme Court, once known for its stalwarts adored for their integrity, independence and reputation, being substituted by a Bar of sycophants.

4. The Contempt of Courts Act, 1971 and the concept of scandalizing Courts, a concept which has become obsolete even in the 19th Century, is so often used to suppress criticism against upright and bold press reporters or lawyers who are accused of committing contempt by scandalizing the Court. They are advised to tender apology, and the freedom of press, nay, freedom of speech in so far as the institution of judiciary is concerned ceases to exist. We no longer find a press willing to criticize a Court for fear of contempt of Court proceeding or a suit for damages at the hands of retired Judges. Today, the press, which was once so outspoken, is reduced to a press which resort to sycophantic praise of the Judges, as if the democratic institution, the executive Government, will all fail unless the judiciary armed with the armament of PIL is there to enforce democracy and to oversee all sort of subject matters which fall in the executive domain – removal of hoardings from public places, demolition of unauthorized construction, protection of mangroves, monitoring prosecution of political leaders, bureaucrats etc. etc., all hailed by the press as yeoman service of the judiciary.

5. The campaigners though have criticized the judiciary for abuse of jurisdiction and the senior lawyers and the press for pledging their independence and allowing themselves to be sycophants, that does not mean that everything is wrong with the judiciary or the bar or the press. The criticism made above is only one side of the coin. There is another side, all worthy to be stated. The endeavour of the instant campaigners is to press for certain simple measures which nobody could press, at least in the open even while they may do so in private, to achieve greater transparency and accountability in judiciary. The said measures are:

a) video-recording and simultaneous telecast of proceedings of all Courts and Tribunals in the country and in particular of the Supreme Court and High Courts, which could be done with least effort and expenditure and in no time, which could readily obtain an end to the misbehaviour from the Bench, its excessive interruption, threatening lawyers and litigants and all sorts of abuse, not merely by the Judges, but by lawyers and litigants too who do not behave well. If video-recording and its simultaneous telecast is introduced, the stampede for the lawyer who wears silk, for the litigant public believe that a lawyer designated as a Senior Advocate alone has some chance of being heard and others are treated as underdogs, except for a couple of noble Judges, will come to an end. There will thereafter be no lobbying by lawyers with 20/25 years of standing at the bar for designation as a Senior Advocate, which requires majority of votes of the Judges of the High Court or the Supreme Court, as the case may be;

b) Open selection of Judges of the Supreme Court and High Courts by advertisement of the vacancies, receipt of applications, scrutiny thereof and selection in a most open and transparent manner, so that the vast majority of eligible lawyers will have a fair opportunity to be considered, except of the current cabal system where kith and kin of Judges and senior lawyers alone are considered;

c) Restoration of freedom of speech by scrapping the most abused offence called scandalizing the Court;

d) Introduction of an effective mechanism for dealing with complaints of corruption, misbehaviour, incompetence etc., against Judges of the higher judiciary in which lay people have a participation, instead of whatever is the mechanism being reduced to a body of Judges and lawyers;

e) Transfer of Judges of the High Courts, re-introduction of the system where 1/3rd of the Judges of a High Court are from outside the State; even 1/3rd is not enough, it ought to be at least ½;

f) Bringing an end to the uncle Judges syndrome; make it mandatory that a Judge, who has his son or daughter or immediate relative practising in the High Court where he functions, is liable to be transferred to another High Court;

g) Repeal the concept of absolute impunity to Judges, and even for lawyers, and the impunity be confined to where they act bona fide;

h) Enact a law to make it expressly clear that Judges like other citizens are liable for prosecution and that a First Information Report is liable to be registered when Judges commit a cognizable offence which has nothing to do with discharge of their judicial function, like where they commit an offence under the Motor Vehicles Act or outraging the modesty of a woman or indulging in rave party, without least intending to suggest that Judges indulge in such offences.

i) Abolition of Tribunals and revitalizing and strengthening the institution of Civil Courts;

j) A common dress code for all lawyers and abolition of the concept of designation of lawyers as Senior Advocates;

k) Declaration of assets by Judges of the Supreme Court and High Courts;

6. The suggestion at some quarters to amend the Constitution to undo the mischief brought in by the judgments in Judges-2 and Judges-3 cases is absolutely ridiculous a proposition. If a judgment is to ridicule the Constitution or tear it off, the same is liable to be declared as void and it is not the Constitution which is to be amended.

by Mathews J Nedumpara