SALIENT ASPECTS OF THE ENDOWMENT LECTURE AT SDM LAW COLLEGE, MANGALORE DELIVERED ON SUNDAY, THE 4TH OF APRIL, 2010
I am humbled at having been invited to deliver the Silver Jubilee Memorial Endowment Lecture on the topic of The Need for Judicial Accountability in the Era of Judicial Transformation, sponsored by the Alumni instituted Endowment Fund of Shri Dharmasthala Manjunatheshwara Law College and Centre for Post Graduate Studies, Mangalore in the series of Endowment Lectures.
‘Judicial Accountability’ is a phrase which everyone can understand, ‘Judicial Transformation’ is a phrase capable of multiple communications and the bigger phrase of ‘in the era of Judicial Transformation’ obviously implies that this is an era wherein is taking place judicial transformation and as is the nature of human beings, the era is always the current era and the person from whose angle, from whose perception, understanding, the change is taking place is obviously the self.
It is the common trait of human being to think, to believe and to perceive that he is the centre of this universe, he is the focus of this universe. This is obvious for the reason that the world around me exists from my perception, from my understanding and therefore I inevitably become the centre of the universe. The entire universe exists as I perceive it, as I look at it and is all around me. When we grow a little bigger, when we move out of this conceptual trap, we gradually realize the illusion that we have created for ourselves. In plain Kannada proverb it is the ‘koopa manduka’ [frog in the well] phenomenon.
As and when the frog comes out of the well and starts looking at things even beyond the well, it dawns upon the frog that there is a large world outside the well; that the world does not end with the well and it gradually dawns upon us that our vision and perception was very myopic. The greater we realize the vastness of this world [Brahmanda], smaller we grow in comparison to the vastness of the Brahmanda, but, in fact, compared to our earlier self, we keep growing. That is the paradox of life, human being, illusion [maya], the universe, the vastness, the infinite and the human being i.e., the jeeva in this vastness, the individual in this plurality, but for whom nothing exists. It is only so long as I exist, the universe is around me and it exists. When I am not here, when I am gone, everything vanishes. Does it really? Can it vanish? To which world do I get transformed? These are eternal mystique questions that have puzzled, that have provoked, that have evolved the human thinking and personality and continues to do so.
Well! Law takes a very small minute part in this cosmic scheme of things and is no different from the general trend. The concept of law remains abstract. It keeps changing, it keeps evolving. In basic terms, law is a code of conduct defined for ourselves whose limits are well delineated, whose tenets are fixed, whose application is in general, well even universal and which we give to ourselves to ensure an orderly way of interaction in the society, a disciplined way of living, a device invented to ensure that the weak and the gullible are protected from the overbearing and the aggressive; that a measure of assurance and protection is given to every member of the society. It is to sober down the impact of Darwin’s Theory of Natural Selection, to ensure that the weak and the not so strong also survive in the society and in the present environment, so that and we all live in an orderly peaceful manner. Mere existence of law in itself is of no use. That law should be implemented, enforced.
Implementation and enforcement calls for a medium, an agency and conveying what the law is, applying the law when interaction and human relationship in the society is not working according to it, ensuring that the violators are disciplined and the affected are protected, all call for an independent agency which has to examine the affectation or complaint of the person who feels aggrieved and that agency is identified as the court or judicial system. The content and the impact of law is worked through courts, interpreted through courts and is implemented through the administration or executive. Until this whole exercise is taken to its culmination and in a proper and systematic manner, the purpose of law is not achieved.
Unless the court system and the judicial system are competent and capable of achieving this object and purpose, law again fails. The system, the judicial system fails. There will not be peace and harmony in the society, but there will be discontent, dissatisfaction, disorder, anarchy in the society. Anarchy is not conducive for the development of the individual and the society. If anarchy is to be avoided and method and orderliness is to be ushered in the society, it can be achieved only if one has an efficient judicial system. An ideal judicial system is a goal, a vision, the ultimate, like the utopia which is always aspired for, but seldom attained. Well, one can tend towards it if not achieve it in its absoluteness.
In the absence of an ideal judicial system, available practical judicial system, if, can function with some sense of purpose and commitment. it can definitely go a long way to achieve the purpose of law. But that calls for a self imposed discipline on the part of members manning the judicial system, an unwavering commitment and a dispassionate approach to the task at hand. This again tends to border towards idealism and perhaps the best thing is to strike a balance between the practical and the ideal. If the practical has to be converted into the ideal, well there should be an overseeing omnipotent presence which goads the practical to move towards the ideal and at any rate never to move in the opposite direction. This object can be achieved by ensuring a level of self inflicted discipline and accountability on the part of the persons manning the judicial system.
Well, to err is human and persons manning the judicial system being human beings, will be quite prone to commit errors. The accountability aspect requires to be enforced on persons manning the judicial system, if they are by themselves not so, and that is where steps in the concept of judicial accountability. To put it in simple words, ‘Judicial Accountability’ means the responsibility on the part of the persons manning the judiciary who should exhibit their awareness and fulfill their obligation to be responsible towards the members of the society, for their well being, for their protection, for their progress. The moment a person holds any position in judiciary, there is tremendous responsibility on the person and the concomitant consequence is accountability. Accountability goes hand in hand with responsibility and therefore every person having judicial responsibility is also automatically judicially accountable and in our present governance, the system of governance being a social, democratic republic and the constitution proclaiming,
“WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC and to secure to all its citizens:
JUSTICE, social, economic and political;
LIBERTY of thought, expression, belief, faith and worship;
EQUALITY of status and of opportunity;
and to promote among them all
FRATERNITY assuring the dignity of the individual and the unity and integrity of the Nation;
IN OUR CONSTITUENT ASSEMBLY this twenty-sixth day of November, 1949, do hereby adopt, enact and give to ourselves this Constitution.”
the focal point of the whole object and purpose of the constitution being people of the country, the judicial accountability is towards the people of the country.
The degree of judicial accountability, which the founding fathers of our Constitution presumed to exist, in the judges of the superior courts and with which faith the founding fathers of our Constitution insulated judges of superior courts with foolproof protection, has unfortunately started working in the opposite direction with the induction of suspect, incompetent, dishonest judges into the superior judiciary and of course judicial accountability is the victim.
Protection to the judges of the superior courts provided with the principal object of ensuring that the judiciary remains totally independent of outside influences and more so from the overbearing influence of executive governance, has only been abused in recent times with errant judges who have become insensitive not only to their duties and responsibilities but also to public opinion, doggedly clinging on to their posts and offices even when faced with impeachment motion initiated by the only Constitutionally provided disciplinary body viz., the Parliament of the country and as a result, the image of the judiciary has diminished and the common man of the country has started to exhibit signs of despair, loss of confidence and trust in judiciary. This has happened only because of lack of judicial accountability on the part of the judges of the superior courts of the country.
The judges in the subordinate courts are made accountable and their conduct and functions are made answerable directly to the High courts of the state and that can definitely take care of the errant judges in the subordinate judiciary, which, no doubt, constitutes the base and foundation of the Indian judiciary. But, with the judges of the superior courts having been bestowed with the protection under the Constitution and the protection here to stay, in general to all the judges of the superior courts, but the exception being only a judge whose misconduct is proved and on a motion and debate, supported by two-third membership of the members present in each of the two Houses of Parliament and such supporting members being not less than half of the total membership of each House, for the removal of the judge and such a possibility having become more imaginary than real in the present day state of polity in our country with innumerable and fractured political parties, only vying with one another for grabbing power and not either adhering to their party manifesto or to any ethical value on the part of the individual members, such conditions have only emboldened and encouraged the errant judges to act in a brazen manner, to dare and challenge the only disciplinary body – Parliament – to try and take any action against them. This is definitely not a very healthy augury to the society, to the country and to our Constitutional mandate of social democratic system of governance.
The other major contributory factors, in the context of judicial accountability being not in vogue in the higher Judiciary are:
1. The misuse and abuse of the power to punish persons committing contempt of court available under the Contempt of Courts Act.
2. Varied activities and diversion of attention of Judges to non-judicial functions/activities.
3. Non-existence of an effective disciplinary mechanism to identify and take action against the errant Judges.
4. Judges yielding to outside pressures and dictates.
5. Foolproof immunity to Judges of the superior courts which has virtually insulated the Judges from all sorts of outside pressures and influences having virtually become a fortress like a shield the well protected Judges having started misbehaving and misconducting themselves while enjoying such protected privileges.
6. Misuse and abuse of the potent power for imposing punishment for contempt of court as provided under the Contempt of Courts Act.
Example: Erring Judges though obviously are on the wrong side and have misconducted, getting brazen and doggedly refusing to give up their position and leave office as they have realized that the impeachment procedure, the only way provided for under our Constitution in the present scheme of conferment of power on the three wings of the State, is a failed mechanism as it is well nigh impossible to impeach a Judge in the wake of fractured political parties, political parties being not in a position to distinguish between the right and wrong and at any rate no meaningful debate taking place in the Parliament, no issue based stand being taken by the Members of the Parliament belonging to different political parties and leaders of political parties using their position only to further their personal power and influence rather than acting in the interest of either the party or the society or even to implement the ideals and principles for which a party is brought into existence, the errant Judges have happily clung on to their seat of power without exhibiting any degree of judicial accountability.
I am of the earnest opinion that the power to punish people who have committed contempt of court proceedings and orders is a very drastic power without even reasonable safeguards, but more disturbingly without adequate remedial measures at all. If mistakes, errors or even illegalities are committed in the exercise of this power and this definitely happens when the power is abused at the level of superior courts in this country and of course becomes irreversible and without remedy when it happens at the highest level of the judicial system, abuse of judicial power is total and lack of judicial accountability perpetuates the abuse.
While the breed of journalists, are by and large victims of this phenomenon of tyrannical and abusive exercise of the power for punishing people for contempt, the case of Ms Arundhati Roy will remain as a black spot in the judicial history of this country forever. I am of the personal opinion that the day when Supreme Court punished Ms Arundhati Roy for contempt and sentenced her to undergo a day’s imprisonment and sent her to Tihar Jail in the case of ARUNDHATI ROY, IN RE reported in[2008] 3 SCC 343 was the darkest day in the history of the Indian Judiciary. I, as a Judge, through this expression, offer my personal regret and apology to Ms Arundhati Roy for the judicial tyranny let loose on her by the most improper use of the power to punish a person for committing contempt of court.
It is high time, members in the superior courts of this country exhibit greater awareness of the sense of judicial accountability required to be exhibited and adhered to while exercising the unruly power of punishing people for committing contempt of court.
This again is an area for legislature to get active in the wake of past experiences and to usher in suitable legislation to ensure that the power does not become tyrannical. The power while is to be retained, should also be ensured to be available only in instances of statutorily recognized situations and not left to be nebulously expansive in its range and reach.
A judge is a public servant. Every public servant is accountable to the people and to the society and to the entire country at large. [decision in K VEERASWAMI vs UNION OF INDIA – (1991) 3 SCC 655].
Accountability means a judge should discharge his duties and responsibilities in a proper, efficient and law conforming manner. Ultimately, the accountability of the judge is to his own conscious and, therefore, should be an in-built quality in every judge.
Duties of a judge, nature of responsibilities bestowed on every judge is the same, whether the judge is presiding over a court at the lowest level of the judicial system viz., the munsiff court as is popularly known or a court of judicial magistrate and civil judge or is functioning at the higher level viz., senior civil judge, both of whom exercise powers on the civil side as well as criminal side or the higher level of a district judge, who is a judge statutorily recognized [CPC, CrPC, and several of other statutory provisions] and constitutionally also [under Article 283 of the Constitution of India] and a host of other enactments, as the entire judicial system below the High court is known as subordinate judiciary and also as indicated in Chapter VI of the Constitution of India – appointment of district judges, Article 234 – recruitment of persons other than district judges to the judicial service, Article 235 – control over subordinate courts, Article 236 – interpretations and Article 237 – applications of the provisions of Chapter VI of Part VI of the Constitution of India are all with the High court, such High court for each state or in some cases for a group of states and the at the apex level, the Supreme Court, all exercise the same nature of power and perform the same kind of duties. Of course, the nature of the power and the extent of the power is depending on either the statutory provisions or the Constitution regulating the subject, and the composition and the jurisdiction of these courts and in the case of superior courts, the relevant Articles in the Constitution.
In so far as the appointment to the subordinate judiciary is concerned, the appointing authority is the governor of the state in consultation with the respective High court exercising jurisdiction in relation to such state and in respect of High courts and the Supreme Court, the President is the appointing authority and in consultation with Chief Justice of India, the Governor of the state and the Chief Justice of the High court exercising jurisdiction with reference to that state, when the appointments are to the post other than the Chief Justice, as is provided under Article 217 of the Constitution of India, and likewise, as is provided in Article 124 of the Constitution of India in the case of appointment of a judge to the Supreme Court. The President has to consult. The peculiar as indicated in Article 124 in the matter of appointment of judges of the Supreme Court is that the Chief Justice of India should be compulsorily consulted, when it is an appointment to the post of other judges of the Supreme Court and the President may also consult such other number of judges of the Supreme Court, as the President may deem necessary for the purpose, and such number of judges of the High courts in the states also, as the President may deem necessary.
In so far as the judges in the subordinate judiciary are concerned, while the control is directly vested with the High courts under Article 235 and the High court can enforce accountability on the part of the members of subordinate judiciary and hold disciplinary proceedings against misconducting judges and impose commensurate punishment is a constitutionally recognized and permitted mode of ensuring judicial accountability, a corresponding provision is conspicuously absent in the Constitution itself for enforcing such judicial accountability on the part of the judges of the superior courts of this country viz., judges of High courts and the Supreme Court, except for the provision for impeachment of a judge.
Framers of our Constitution, perhaps, could not have even visualized that there can be undisciplined erring persons amongst the galaxy of judges in the High court and in the Supreme Court. While the appointment to the Supreme Court is by and large, as a rule by way of promotion and selection from amongst the senior-most judges in the High courts and as an exception to this rule, sporadically directly from the Bar also and at that level and having regard to the source from which they originate, an errant behaviour or an impropriety on the part of such judges, was unthinkable, even then, the visionaries that they were the framers of our Constitution, provided for even an unlikely exceptional situation of a judge in the superior court misconducting to such a level that the judge disqualifies himself/herself from holding the office of a judge and provided for removal of such judges from the office of judge by providing for an avenue in terms of sub-article (4) of Article 227 of the Constitution of India
124. Establishment and constitution of Supreme Court.—
(1) There shall be a Supreme Court of India consisting of a Chief Justice of India and, until Parliament by law prescribes a large number, of not more than twenty –five other Judges
(2) ...
(3) ...
(4) A Judge of the Supreme Court shall not be removed from his office except by an order of the President passed after an address by each House of Parliament supported by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present and voting has been presented to the President in the same session for such removal on the ground of proved misbehaviour or incapacity.
xxx
and which is the very procedure for a like judge in the High court also.
While theoretically it can be argued that this is the provision indicating the kind of judicial accountability implicit and expected on the part of the judges of the superior courts and also as a provision for removal or corrective action in respect of the misconducting judges, the problem lies in its impracticality of implementation in the present scenario of our parliamentary democracy.
This constitutional provision, undoubtedly, implies that the only disciplinary authority in so far as the judges of the superior courts are concerned, it is the Parliament, the highest representative body of the people of this country and which has also the power to make laws and even to amend the Constitution of India, which, in fact, is also the creator of the Supreme Court and the High courts and even the manner of working and implementation of the removal of judges in the superior courts is also within the province of the Parliament in terms of sub-article (5) of Article 124, reading as under:
(5) Parliament may by law regulate the procedure for the presentation of an address and for the investigation and proof of the misbehaviour or incapacity of a Judge under clause (4)
and in terms of this power the Parliament also legislated the Judges Enquiry Act, 1968, but a mechanism which failed on the only time it was put to test and there is no guarantee it will work now or in the future. I say so for the reason that the kind of majority of the members required to support a motion for removal of a judge as envisaged in sub-article (4) of Article 124 has become more an illusion than a reality in the present fissured polity of our democratic system.
While it is no doubt true it is a paradox that the members of the judiciary at the highest level could themselves be misconducting as judges and require a mechanism to remove them, particularly when the misconducting judges, though are, prima facie, shown to have indulged in nefarious activities, corrupt activities and immoral activities, such judges throwing good conscious and moral responsibility to winds and brazenly clinging on to the post of a judge, as has happened in the case of Justice V Ramaswamy, the only instance of impeachment motion, which failed and as is happening in the cases of Justice Soumitra Sen of Calcutta High court, against whom the committee set up for going into the conduct or rather misconduct of the judge, has given a report/verdict holding the judge guilty of the allegations, also refusing to see reason and resign from the post, and of course with the Chief Justice of India and his colleagues in the collegium in the Supreme Court not necessarily playing straight or in consonance with the accepted moral standards and good conscion and responding with marked inconsistency to such situations of proven misconduct and even outright mal-conduct on the part of the judges, as has happened in the case of Justice Nirmal Yadav of Punjab & Haryana High court and overlooking obvious and glaring cases of misconducting High court chief justices, whose reputation had taken a beating in the light of various scandals with which they were associated with and nevertheless in violation of the law declared by the Supreme Court in the case of S P GUPTA vs UNION OF INDIA [AIR 1982 SC 149] having recommended appointment of such judges whose reputation had taken a beating to the highest court of the land, the expected self-discipline, the inner conscion that should be present in every judge, the degree of morality that has to be inevitably present in every judge, have all been conspicuously absent and there is no more guarantee that even the judges in the superior courts are persons who can be expected to be persons of a degree of competence and rectitude and therefore unless the judicial accountability mechanism is practical, effective and workable and is also not very cumbersome, the mechanism fails and the errant judges rule the roost and the justice delivery system fails, people of the country are denied or deprived a constitutionally provided remedial mechanism not only to solve the disputes amongst citizens and citizens and the citizens and the state, but also a mechanism to protect their rights and liberties that fails and ultimately, the constitutional scheme of providing for checks and balances over the different organs of the governance as envisaged under the Constitution itself flounders and the constitution becomes only a mere paper document, a mere declaration in letters, but not in reality and action. That is a sad day for our country, which will be a disaster for our country and that cannot and should not happen. Unless there is an element of judicial accountability, such disaster becomes a possibility in the future.
It is very necessary to stem the rot, which has already set in the judiciary and not only arrest the rot but also reverse it to ensure that the Indian judiciary becomes healthy and alright, functions effectively and remains always in the service of the people of the country.
In the absence of any alternative solution provided or envisaged under the Constitution and the laws as it stands now, in my opinion, the only way-out is for a very enlightened, responsible, vigilant and vociferous public opinion. In a democratic system voice of the people matters. Of course, their voice can be translated into votes in large number and in a democracy, numbers definitely matters. Our country being a sovereign, secular, socialistic democratic republic, and the people being the ultimate masters, their voice, their views, their reactions, not only should matter, but all organs of the state should be sensitive and respond to an enlightened and responsible strong public opinion. In my earnest view, you are the solution.
I can only recollect the prophetic words of Dr B R Ambedkar, chairperson of the Committee for Drafting the Constitution, which, no doubt, comprised of very knowledgeable, erudite, experienced statesmen and visionaries and who had put in their heart, sole and mind into the making of the Indian Constitution, but nevertheless, as Dr B R Ambedkar remarked that A Constitution is only as good as the members who man the Constitution and unless members who are in governance themselves are of such quality and are dependable, the Constitution by itself is of no use, however good it may be on paper and on record.
It is for the people of this country to ensure that the responsible, conscientious, upright, competent and above all people-concerned persons are elected and put in the assemblies and the parliament of our democratic system, which in turn can definitely ensure a proper governance of this country, which can also ensure an upright, competent, useful and effective judiciary in place. Swami Vivekananda said: Arise, awake and stop not till the goal is achieved. My appeal to all of you is to arise, awake and stop not till the judiciary is cleansed of corrupt elements and is made available to you in the manner as is provided under the Constitution and the judges conduct themselves as is expected of them.
Judges hold public positions and perform public duties. Therefore Judges are automatically accountable to the public, in the performance of their duties. The power and authority conferred on the Judges is to discharge their public duties in a proper, efficient, impartial manner. Power and duty goes hand in hand. Power is always coupled with duty.
In fact, power and authority is so conferred on the Judges only to perform their public duties and not for either protecting their own private interest or to utilize it for furthering the interest of persons, whom they want to favour. Judges are virtually, in the matter of exercise of their authority and powers, similarly situated to the Trustees who hold the property in trust for the benefit of the beneficiaries and perform their duties as Trustees only to ensure that the beneficiaries get what they are entitled to in terms of the mandate of the propounder of the Trust. In so far as the Judges are concerned, such a mandate is to be found in the Constitution and the various laws under which the powers are conferred on the courts and which power is to be exercised, through the Judges for the benefit/protection of litigants.
While the power and authority of a Judge no doubt brings to the post of a Judge a great degree of respectability, obedience and an element of aura to the post of a Judge and even provides a hallow to the Judge and Judges are looked upon as ideal persons in the society and are treated on par with divinity, all these things happen only so long as a Judge is performing his duties in a proper and efficient manner. It is not so much as the power and authority conferred on a Judge that begets such great respect to a Judge, but it is only the actual manner in which a Judge conducts and the performance as a Judge being to the expected levels and so long as the opinions/Judgments rendered by Judges are impartial, of quality and law conforming.
It is only when a Judge’s competence level is at the optimum, the Judge is respected. The mere availability of power and authority in a Judge by itself will definitely not beget a Judge the kind of respect and adulation received by Judges. If a particular Judge is incompetent, dishonest or is abusing his/her power and authority for extraneous reasons, people will not respect such a Judge and hesitate to go before such a Judge for seeking solution to their problems.
Judicial accountability can be classified into two categories. First at the individual level, which encompasses within itself the functioning of all judges in the judicial system at all levels. This can be achieved if the judges are committed to these duties and discharge their functions in a competent, efficient manner. That will be possible only if persons suitable and competent to the post of a judge alone are appointed at all levels and they remain committed and maintain the degree of integrity that is required to perform the job of a judge and of course remaining objective at all points of time.
The second category of judicial accountability is at the institutional level. On the first blush, it may look that if all judges are individually committed to their job, perform their duties in an efficient and upright manner, always remain objective and render a judgment bona fide, judicial accountability at the institutional level is automatically ensured. It is not necessarily so.
When the judicial accountability at the institutional level is spoken of, one can easily notice that it varies at different levels, unlike in the case of judicial accountability at the individual’s level.
The degree of responsibility at the institutional level is directly proportionate to the positioning of the court in the hierarchy of the justice dispensation system. Higher the level of the court in the hierarchy of judicial functioning, greater the responsibility and, of course, the Supreme Court of India obviously has the greatest responsibility and this automatically envisages within itself the greatest judicial accountability on the part of the Supreme Court of India.
This is not to say that the High courts have a lesser degree of judicial accountability as institutions, but if one should look back at the manner of functioning of the High courts vis-Ã -vis the Supreme Court, the ironic picture as emerges is that the High courts have emerged in better light than the Supreme Court in displaying the degree of judicial accountability as institutions. Be it in upholding liberty of the citizens, as happened during the black days of emergency under the prime minister-ship of Mrs Indira Gandhi [ADM JABALPUR VS SHIVAKANT SHJUKLA – (1976) 2 SCC 521] or in ensuring the evil system of capitation fee being charged by the professional colleges in the filed of education [TMA PAI FOUNDATION vs STATE OF KARNATAKA – (2002) 8 SCC 481]. In both these decisions, we see failure of judicial accountability at the institutional level.
The manner in which judicial accountability works at the institutional level and the distinction that can be drawn as between the High courts and the Supreme Court is mainly due to the kinds of powers that are conferred on the High courts and the Supreme Court under the Indian Constitution, though under different statutory provisions, the Supreme Court is normally placed at the highest level as a court of appeal, but under the Constitution, the Supreme Court has been conferred with certain far reaching powers and responsibilities that places the Supreme Court in a unique position even to the extent of guiding and shaping the functioning of the Indian republic.
To achieve judicial accountability at the institutional level, the High courts in general and the Supreme Court in particular, should realize their precise role envisaged under the Constitution and scrupulously adhere to it. It is also very essential to keep always in mind that the role of judiciary is one of the corrective role and that should be the primary role and it is only for performing this primary role and when it becomes absolutely necessary, it can be supplemented with a possible, permissible powers and functions, which are normally exercised by the other two organs of the state viz., the executive and the legislature. Transgressing the limits of the role, power, functions, duties and responsibilities bestowed on the higher judiciary by the superior courts in this country at the institutional level will cause an imbalance in the system of governance and unless it is realized and corrected immediately by the judiciary itself, it could lead to a situation where there is a breakdown of the Constitutional scheme and the result will be a deadlock or stalemate.
Of course, the judiciary has been applauded, praised and even adored for its active role and invasive forays into the areas earmarked for the other two organs and by resort to path-breaking, innovative judicial activism and many a time in the name of public interest litigation, what may appear to be a very positive development in the short term, but it may turnout to be a very negative disastrous development in the long run.
For paucity of time, without going into more number of cases, I would cite the judgment of the Supreme Court of India in the case of KESAVANANDA BHARATI vs STATE OF KERALA [AIR 1973 SC 1461] which undoubtedly can be rated as the zenith of judicial activism, but ironically also constitutes the best example to illustrate and demonstrate a classic situation where judicial accountability has failed at the institutional level.
Of course, there are a good number of other decisions, wherein we can notice this phenomenal failure of judicial accountability at the institutional level. But as indicated above, the judgment of the Supreme Court in the case of KESAVANANDA BHARATI is definitely the icing on the cake.
I say so for the reason that while the concept of basic structure theory developed in this judgment has been applauded as the greatest contribution of the Supreme Court to the conservation of a true democratic system in this country and also as a check on the autocratic and arbitrary use of power by a brute, unreasonable, self destructive majority in the Parliament, but the judgment fails if the very test is to be applied to the judicial functioning. What applies to the goose equally applies to the gander! If the courts i.e. judicial system does not believe or does not have faith and confidence in the majority of the members of the Parliament, who support a Bill for amending the Constitution in the manner in which they think and the amendment is needed and should be done, as in the opinion of the courts, the change to the Constitution by such amendment, could be a failure or destruction of the basic feature of the Constitution. While the Parliament can definitely reciprocate the gesture and return compliments, expressing a like doubt, suspicion and lack of confidence in the functioning of five or more judges of the Supreme Court functioning as the Constitutional Bench, as persons not to be trusted for safeguarding the right, interest and the freedom of the citizens of this country, then the judgment fails on the application of the very theory of basic structure.
The difference between the judgment of the court and the passing of a Bill by requisite number of members of Parliament is, while by passing of the bill, it becomes a law with the support of requisite number of members of Parliament, as is provided in the Constitution itself, the basic feature theory is not one so provided for in the Constitution, but invented by the courts for conserving and sustaining the basic feature of the Constitution and therefore judiciary rewriting the Constitution. This is an area where trust and faith in the other organ or to be precise, the lack of it, has overridden or overtaken the provisions of the Constitution.
Well, if the Supreme Court of India, who, undoubtedly, have the power and the duty to interpret even the provisions of the Constitution of India, by a process of interpretation can persuade themselves to believe that Parliament can become a Bhasmasura, by the misuse or abuse of the brute majority support a motion for the amendment of the Constitution, while we have a Mohini in the Supreme Court, but if the Supreme Court itself becomes the Bhasmasura, by resort to the process of interpretation of the Constitution by misusing or abusing this power, where do we find the Mohini?
This is where judicial accountability enters the scene and should act as the warning signal in the functioning of the superior courts at the institutional level.
While I find some difficulty in attributing any special significance to the second part of the topic, namely, ‘in the era of Judicial Transformation’, my understanding is that the organizers must have thought of this part and added this to the judicial accountability part in the wake of current unhappy episodes involving many Judges in the superior courts and the new found messiah of the legislation called ‘The Right to Information Act’, ushering in an era of transparency, openness and creating awareness for the people and this being enabled to insist on, not only for elimination of mal administration and lack of administration, but also to provide instead a good governance. I understand that the judiciary is also required to respond to this trend emerging in the society and to usher in an era of meaningful judicial accountability which in turn can definitely pave way for ensuring good governance by making the other two organs of the State, namely, Executive and the Legislature to fall in line and to respond to the travails and the needs of the people of this country and thereby fulfil their respective obligations and translate into reality the object and goal of our Constitution.
The judgments of the Delhi High court interpreting the provisions of the Right to Information Act, with no less than the Supreme Court of India itself being in the position of a suitor/petitioner, in a writ petition brought before the Delhi High court by the Supreme Court for the purpose of getting over the order passed by the information commissioner in an appeal by the RTI Activist – Mr Subhash Chandra Agrawal, have created such tremendous awareness amongst the general public about the boon of a legislation called ‘The Right to Information Act’ and has consequentially greatly heightened the legitimate expectations of the people of this country over the need for commitment to judicial accountability on the part of the Judges of this country. Well! It is undoubtedly an era of judicial transformation. If the transformation is to be taken to its logical conclusion, it is sustained public opinions and public pressure which greatly matters and that can make a difference in a socialistic, democratic, republican country like ours. If the need for judicial accountability is fulfilled, as a consequence results will automatically follow.
While it is no doubt true that there are dark spots and dimly lit areas in the judiciary and as of now, there may be a case of Justice Dinakaran in the South, Justice Nirmal Yadav in the North and Justice Soumitra Sen in the East and also the masked manner of functioning of the collegium of the Supreme Court and the High courts, I am of the view that these are all nothing but aberrations of the times and the institution of judiciary will definitely weather these hiccups, shed its black sheep and emerge clean and virtuous in the long run. I am sure that will happen with the Right to Information Act greatly enabling such happening and with an enthused, enlightened legislature earnestly seeking to usher suitable legislative changes to make such thing happen.
I am an optimist and I am sure the day will definitely come and we will see the day not later but sooner.
Let us all strive in that direction. Once again, I thank the organizers for this wonderful opportunity. Thank you all for your tremendous patience and courteous listening of this otherwise mundane lecture.
Good day! Sarve Jana: Sukhinobhavanthu
For full lecture – Download the Attachment.
No comments:
Post a Comment