Wednesday, November 9, 2011

Judiciary must chew on its ills this recess : Rajeev Dhavan News - India Today

Judiciary must chew on its ills this recess : Rajeev Dhavan News - India Today:

'via Blog this'



From 14 May 2011, the Supreme Court will go into recess. Some lawyers will take a small break and seek money elsewhere. Some judges will holiday. Like last year, Chief Justice Kapadia may tour his registry to make minor changes, effective from July. The high courts vacation at different times. The lower judiciary rarely vacations. This huge jumbo of a judiciary, which is quite capable of running amok, invites indifferent attention during recess.

I was in Pakistan on the 22nd April weekend where lawyers and judges from all over met at their grand Supreme Court building to reassess their work. In addition to the few speeches, there were hard- hitting exchanges. Particularly memorable was a speech of the Chief Justice from Peshawar on corruption. Incisive interventions were made by Asma Jahangir, President of the Supreme Court Bar. We had frank exchanges with Chief Justice Iftikar Chaudhury. Most significantly, the Chief Justice of Pakistan released a book of judicial statistics.

Lessons

The Indian judiciary is the most secretive institution of Indian governance. When I wrote my five books on the Indian Supreme Court, judges like D. A. Desai leaked monthly statistical data to me. Later, Chief Justices Punchhi, Ahmadi, and Balakrishnan denied data and Chief Justice Sabharwal was more willing to give information than his registry.

What did I do? I found that from 1990 or so, foreign scholars got information which they parted with in exchange for my volumes.

The practice of the British Raj required all high courts to publish detailed data on all courts in their jurisdiction. I found that all these splendid publications stopped during the Emergency. As an MP, Fali Nariman proposed a Bill to make publication of statistics mandatory. Law minister Bharadwaj shot this salutary proposal down! Why? Secrecy for its own sake! We need vital information about the judiciary. We have a lesson to learn from British practice and Pakistan's innovative initiatives. For the period 1950- 75, I was able to examine the litigation trend in UP in every court. Prof. Moog from America wrote engagingly on this. Beyond routine information, more was available with the help of small coaxing bribes ( if tea and rasagollas are bribes).

There are two lessons to be learnt from Pakistan. First: an annual national meeting of judges and lawyers to discuss the judiciary. In India, what we have is a Chief Justices' conference in the autumn where High Court judges lobby each other and Supreme Court judges for promotion. Second: Data on work flow, budget, and staffing should be published. Chief Justice Kapadia should lead by an annual publication on the Supreme Court on this. The High Courts should follow. The information on the websites is grossly inadequate.

No less important is the issue of renewal. Good judges and lawyers must be replaced by equally good, if not better, ones. Apart from an existing vacancy, seven judges retire this year ( Ravindran, Katju, Bedi, Sirpurkar, Reddy, Panchal, Sharma). Some are very good. The bar regrets the loss of some. If Katju stands in a class of his own, it is because he has converted his court into entertainment - playing T- 10 or even one- ball- cricket, despatching each ball to the boundary.

He can be forgiven for his penchant for drama and lack of etiquette. But he cannot be forgiven for converting the court into a circus. He is truly irreplaceable.

But what of the others? India's appointments to the Supreme Court are made on a formula of seniority and the whim of a judicial collegium of senior judges.

Appointments

This can be so invidious that even the distinguished Justice Jeewan Reddy confided that when he was a sitting judge he learnt of appointments from corridor rumours and the media the next day! In 2011, American scholar George Gadbois's book, Judges of the Supreme Court of India 1950- 1989 , reminds us that for those decades merit and not ' just seniority' was the criteria for appointing judges other than the Chief Justice. Between 1950 and 1989 only 46.7 per cent Chief Justices from high courts reached the Supreme Court and 6.7 per cent had retired from the high court when appointed to the Supreme Court. Judges who were second in command in the high court were 14.4 per cent and the third, fourth and fifth were 25.3 per cent. This mix of seniority and merit achieved outstanding results.

Today, chief justices of high courts alone are lined up for consideration.

Whim rather than worth is the criteria for selection. The problem arose after the Supreme Court collegium stole exclusive power for itself in 1993 and 1998. After the recess, Chief Justice Kapadia should hear the pending petition to dismantle this invidious whimsical system. Let us have the best of the best but not this poor combination of seniority and whim. Today, some appointments from the Bar are being held back for fear that candidates may become Chief Justices of India. The Court is being spoilt for mediocrity.

To turn to the Bar. The Supreme Court Bar Association is in a shambles. In 2011, infighting resulted in total paralysis. The ebullient Ram Jethmalani took over by doubtful methods. He is now facing an election against a field of well trodden hacks who suffer from social diseases such as " chairmanitis" and " committeeitis". Voting is done by faction. Some advocates have corrupted the electorate by paying for enrolment. Some junior members have made elections their prime objective in life rather than good lawyering. Will Jethmalani, who deserves to win, ride the crest of this nonsense or will he reform it?

Agenda

New lawyer entrants to the bar are generally good but badly paid. Some turn to sharp practices. Many deservedly excel.

But Supreme Court litigation is overpriced by its senior lawyers. Pakistani lawyers were surprised to learn of our fee structure. In addition to the heavy paying corporate, business and commercial sectors, insisting on heavy fees from civil servants perpetrates corruption. There are two other sectors of Supreme Court practice.

The PIL sector, with its flair for self publicity, brings fame and fortune to those involved in it. But there is also the ' poor' sector. The Supreme Court's legal aid system is one of the worst in the world - usually represented by incompetent counsel. The Supreme Court's lawyering can be brilliant- but it is without mercy with an inchoate sense of justice. It is a money machine that hits the roof. Does anyone care? The Supreme Court is still doing interesting things. It does a vast amount of unrecognised decision making in ordinary cases. But its public law litigation is famous. Pre- Emergency, it was a haven for corporates. Post Emergency, it intervened for social justice, then the environment, and then against corruption - with lawyers and judges playing to the gallery.

Various proposals must be seriously considered: (i) a machinery to deal with complaints; (ii) making the retirement age of High and Supreme Court judges uniform at 65; (iii) creating a court of appeal for ordinary cases and a Supreme Court for all public law and constitutional cases; (iv) publishing statistics; (v) altering the appointment system.

The lesson for this recess is the Socratic Gnothi Seauton ( know thyself) - even if, in Yeats' words: " The best all lack conviction, and the worst are full of passionate intensity."


Read more at:http://indiatoday.intoday.in/story/judiciary-must-chew-on-its-ills-this-recess/1/137526.html

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