It is always difficult to change the system from within. It is recorded in history how the British, occupiers of this country tried to eradicate some of the worst practices that were in vogue two centuries ago. However, our own government failed to take any decision that involves masses fearing backlash of those who still practice some customs that should have been abolished centuries ago. The British were not part of Indian system and so it was easy for them. Rulers of independent India had to take care of their vote banks and so in a so called secular country, there are personal laws for each religion and wrong practices in all religion are equally allowed to be practiced, with pompous.
It is in the dominion of the Supreme Court of India to define anything and everything that happens in the country to be legal or illegal, including laws enacted by the Parliament. Despite few black sheep, Judiciary and Army (including boats and birds) remained two establishments that still are believed in by the people. Any establishment is as good as the men who man it. The example of Justice Iftikar Muhammad Choudhry causing the downfall of the last dictator of Pakistan had once again reminded the world about the power of strong willed judiciary.
Judiciary in India is active for nearly a quarter century often forcing the government to do its job. Most of the time the judiciary was criticized by the polity for being over active or crossing their mandate, but people frustrated with all politicians were happy for they found someone who could kick the rears of the politicians. However, for a nation that expects to be a stable establishment, it is highly required to have an efficiently functioning judicial system. Though the top courts of the country were active, Indian judiciary had let down common people, perhaps more than politicians and bureaucrats put together. In the district level courts and magistrate level courts, the justice system is horrible, for it takes time for a magistrate to understand the nuances of the law and by that time, there would be many verdicts delivered by them. Their dependence on old advocates was too much to do proper justice to their own jobs. Over and above, number of courts are not in proportion to the population or the crime rate. In many courts, some cases that date before independence still continue to continue.
We heard CJI expressing helplessness on lack of sufficient funds. But, for all retired judges acting as officers of inquiry commission, there never was the problem of lack of funds. And many of the retired judges do get employed by the government and some judges may be preferred by the government over others. I don’t want to discuss this part of integrity of judges or the lack of it, for no action was taken on Dinakaran, Balakrishnan, AK Ganguly despite there was prima facie evidence against them. And the supreme court could do nothing when the veteran lawyer Shanti Bhushan claimed in open court that eight ex-chief justices of India out of sixteen he compiled were ‘corrupt’. May be to avenge some over active judges, the political establishment wanted to have a say in judicial appointments. Apprehending the move as a trespass into their territory, the judiciary fought the proposal to set up a National Judicial Appointments Commission tooth and nail before scrapping it up eventually. Judges might have peeved at the authority of morally corrupt politicians sitting in the committee that will be selecting their successors for future generations, but they expressed a sort of dictatorial syndrome in doing so.
‘Justice is not only to be done, but seen to be done’ was one of the fundamentals of law over ages. It was for keeping him image as a ruler who does justice Sibi had cut a part of flesh from his thigh and gave it to the eagle, when he wanted to save the pigeon that requested him to protect its life.
As such, the move by the government to establish NJAC was in fact a good move to induce transparency into the selection procedure of Judges. When the Supreme Court threw the NJAC into dustbin, government could do nothing; it couldn’t even whine for it may be called ‘contempt of court’!
Problems, if understood correctly always contain solutions. Solution to the current problem was Justice Chelameswar. He was the only judge who had recorded a dissent in the judgment delivered by the Supreme Court against NJAC. And somehow, perhaps owing to its own wrong policies, Supreme Court had to accommodate Justice Chelameswar, proponent of NJAC in the current collegium.
After allowing him to enter collegium, can one expect him not to stick to his opinions and values? It would be asking Kejriwal to visit Jantar Mantar, but don’t do a Dharna. That is impossible.
The clever judge he was, Justice Chelameswar utilized the lacunae in the system the way virus is used to prepare vaccine. Determined to change the system from within, he declined to participate in the meeting of collegium and instead asked recommendations of other members including CJI. Now, they are forced to record their recommendations in writing. He refused to take part in the meetings of the collegium for they are simply ‘opaque’ in nature. By forcing to get the discussions or the opinions of fellow judges on record, some sort of transparency in being introduced into the system. This is the first step and a small one, but towards a large goal.
Why the act of Justice Chelameswar is worth commending?
Simply because he had not tried to get himself two bits of fame by giving interviews to news media or he rejected to answer any questions on his purported letter to CJI to get recommendations recorded? May be for both. Deviating the present practice of going public with all insinuations against the system by ridiculing them publicly which everyone from Arvind Kejriwal to Subramanian Swamy do, he chose to remain behind the closed walls of the Supreme Court, adhering to one significant principle of judiciary – not to be a social person, let alone be a public leader! And even the response of CJI, when he said ‘we will sort it out’ is encouraging.
The transition in the selection of Judges, as hoped by the government to common citizens may be the first step towards asking for more funds to establish infrastructure necessary to provide justice even in rural areas. After having a classic example of having a nominated intellectual as Prime Minster for a decade, it is not necessary to explain how much effective a selected intellectual would function. And closed door selection amounts, well – almost to nomination. And it is in the larger interest of masses that justice shall be served and seen to be served. Above all, judges shall be above any – even possible allegations on how they reached where they are!
Economic reforms and Social reforms are essential for survival, while Judicial reforms would be needed for sustenance.
People shall know to respect law of the land and for that even the judges need to be appointed in a more respectable manner so that their judgements are honoured by the governments. Hope the day when we will have NJAC (may be in another form) functioning and the respect for judiciary in the eyes of commoner remains at a higher value.