Justice J S Verma in The Indian Express
With the debate over judicial accountability raging, former Chief Justice of India J.S. VERMA weighs in on the need for self-regulation,and explains his dissenting opinion in the Veeraswami case
A serious debate is now raging about the inadequacy of the existing mechanism for enforcing the judicial accountability of any erring judge in a High Court or in the Supreme Court. There is now a general consensus that some recent incidents involving a few in the higher judiciary has exposed the inadequacy of the existing provisions to deal with the situation; and it calls for an effective mechanism to enforce the judicial accountability of the higher judiciary, in case of need… It must be borne in mind that the number of erring superior judges is minuscule which must not embarrass the vast majority of correct judges. The threat to the independence of the judiciary must be averted by a sensible balancing act…
Focus on some important areas is needed. A few of these were identified in my separate opinion in the K.Veeraswami case, and the majority opinion in the Second Judges case. A brief mention of these in the present context is helpful. In the K.Veeraswami case, 1991 (3) SCC 655 my dissent recognised the felt need for suitable legislation, the existing provision being inadequate, to ensure accountability of higher judiciary protecting judicial independence.
Therein, I had said: “If there is now a felt need to provide for such a situation, the remedy lies in suitable legislation for the purpose of preserving the independence of judiciary free from likely executive influence while providing a proper and adequate machinery for investigation into allegations of corruption against such constitutional functionaries and for their trial and punishment… The social sanction of their own community was visualised as sufficient safeguard with impeachment and removal from office under Article 124(4) being the extreme step needed, if at all. It appears that the social sanction of the community has been waning and inadequate of late. If so, the time for legal sanction being provided may have been reached”.
Having been convinced that the majority opinion in the K.Veeraswami case was not workable (as proved by later events), I added a warning in one para at the end of my draft dissent, which I omitted at the time of its pronouncement because of its strong language. The apprehension therein of a later intrusion by the executive to prescribe for us having now come true, it may help to recall that sentiment with the hope that some prestige may be salvaged even now in enactment of the impending legislation to cover the field. I believe that self-regulation is dignified while outside imposition is demeaning. The omitted draft para from that opinion was: “With no pretensions of a ‘prophet with honour’, to borrow the title from Alan Barth’s compilation of opinions of some great dissenters, and no desire to be a prophet of doom, I deem it fit to end on a note of caution. My view is not shared by the majority. I hope they are right. But, if it be not so, let not posterity accuse us that the control over the judiciary denied to the executive by the Constitution and Parliament, and which the executive could not wrest through Parliament, was conferred on it by judicial craftsmanship itself. I do hope that in spite of the present clamour for the majority view, in calmer times, when present pressures, passions and fears subside, and the potential threat of the yet unknown and unexpected power in the executive without the requisite statutory safeguards is fully realised, there will be time enough to effectively check any intrusion into the independence of judiciary by this means. Undoubtedly, there is erosion of values in all spheres but even now the higher judiciary retains comparatively the greatest credibility in public eye, as it did in earlier times. Is it, therefore, correct and wise to vest the executive, which does not enjoy even equal, much less greater credibility, with this extra power not envisaged by the Constitution and the Parliament? The answer at present by the majority is in the affirmative, which would be the law. It is the future, which will unfold the true canvas.”
The need to regulate this area by internal discipline to prevent outside intrusion prompted resolutions to this effect in the Chief Justice’s conferences, but the general reluctance from within kept the matter in abeyance till the three resolutions were adopted unanimously by the Supreme Court on May 7, 1997: Restatement of Values in Judicial Life; Declaration of Assets by the Supreme Court and High Court judges; and ‘In-house Procedure’ for inquiry into allegations against these judges. These resolutions were later adopted in the Chief Justice’s Conference in 1999. The Bangalore Principles, 2002 also affirmed the Restatement of Values. These resolutions provided the framework for the needed legislation to cover the field without any scope for executive intrusion in enactment of the legislation. Before demitting the office of the CJI, I also wrote a letter on December 1, 1997 to the PM to this effect in a bid to ensure judicial accountability preserving the independence of the judiciary. After my retirement, I have reiterated it in a letter of April 7, 2005 to the present Prime Minister.
It saddens me to find that the judiciary appears to have lost the initiative and the political executive, who also control Parliament in our constitutional scheme, is now to determine the contents of the impending legislation. What troubles me even more is the reported initial assertion of the CJI, Balakrishnan, that the superior judges need not declare their assets unless bound to do so by a law, in spite of the unanimous resolution of the Supreme Court on May 7, 1997 since that has only moral authority; and later the judicial challenge to applicability of the RTI Act in the High Court and then to itself! I am distressed at the comments made publicly and heard privately about the higher judiciary in this context. However, the subsequent dilution of that stand is welcome news. The perception that law alone and not morality binds the judiciary is in conflict with the judicial tradition and is disturbing…
Extracts from the first S. Govind Swaminadhan Memorial Lecture at the Madras High Court on January 29, 2010
V.R. Krishna Iyer IN THE HINDU
Is it the Supreme Court of India, or the Supreme Court for Indians?
A Supreme Court of India, and a Supreme Court for all Indians: these two versions can be radically different in terms of principle and content. The Preamble to the Constitution has pledged the people of India to justice — social, economic, cultural — and political India with a geopolitical concept. Indians represent a humanist-socio-economic idea, a collective value.
A billion and more of Indians have a unique cultural legacy. Their noble thoughts can transcend mere space, terrain and land, and they are politically united by a notion of nationalism. One is dynamic and dialectical, the other is bare ground and air that provide them their habitat. Indians are proud to be a united people. But earth and ocean have no life unless human beings enliven them. Institutions are meant to serve life and its development.
If democracy is for the people, the Supreme Court should function where the litigants need it most, not where the British for their imperial reasons chose to locate it. It was for historical and geographic-strategic grounds that Delhi was chosen as the national capital. Delhi has no other claim to be the capital seat of the judiciary as well. For military and administrative purposes, a united India found Delhi to be the most suitable. But after Partition, Delhi itself remains vulnerable as a target before Pakistan. Delhi has no special advantage in cultural, geographic, political or social terms to be the centre of the country’s judicial administration.
‘For the People’ is a democratic and logical desideratum. Then the courts should be where the litigants are in large numbers, where their access is best facilitated. In this large country, Delhi is but a corner, while the people live mostly to the south, east and west.
The different factors may be studied by a Commission such as the Law Commission, which has come to the reasoned conclusion that there must be four benches of the Supreme Court. The south feels dominated by the north owing to the location of the Supreme Court. Is justice being alienated by distance, culture and language from the north? When the Supreme Court has authority over the rule of the whole nation, this insular judicial imperialism will be a divisive force. This should be avoided at all costs. Decentralisation based on geography, history and social factors is an imperative need.
The glory of India in its undivided status and stature is not dependent on a single court but on its pragmatic diversity. So these are profound considerations behind the demand for Benches of the Supreme Court outside Delhi. Why did Pakistan as a nation become powerful only on religious criteria? Why did East Bengal separate from Pakistan and become a separate sovereign state? Language and culture are good lessons for the people to keep Bharat as one entity. Let us have Benches on federal considerations, promoting unity in diversity.
In a vast country of diversity, demographic immensity, logistic difficulty and large-scale indigence, democracy makes decentralisation an imperative of administration. Access to justice also implies early finality coming within the reach of the rich and the poor. These considerations persuaded Uttar Pradesh, the State that has one of the direst situations in terms of poverty and has one of the largest chunks of population among the States, to attempt some moderate reform in the field of revision to the High Court in litigation involving financial stakes below a certain level.
Up until now, judicial reform has been a tinkering exercise, not an engineering project. But even that little tinkering is fiercely challenged as litigative anathema by the legal profession. This is unfortunate. Decentralisation has a paramount desideratum if access for the people to judicial institutions has to become a reality. This fact compelled various States in India, even native princedoms, to adopt the strategy of having benches. It has worked well to enable the aggrieved poor to reach the courts and seek remedies. The same reasoning justifies the need for benches of the Supreme Court if that magnificent institution is to fulfil its fundamental mission of being a court for the people and of the people. It was this principle that persuaded the Law Commission to recommend four benches for this large country.
The Law Commission has pointed out how huge sums of money are wasted by a single court situated in one corner of the country, which is final and infallible. The litigant sells all he has to reach Delhi and pay fabulous fees to hire lawyers, only to find that by afternoon the case stands postponed. The expense already incurred goes down the drain. Air travel is expensive, hotel costs are horrendous, lawyers charge high fees, and arguments with leisurely judges take too many days. On the whole, going to the law is like going to Banaras or Mecca: a will and testament has to be written out because litigation often lasts beyond your life-time. Astrologers alone can hope to anticipate its fate.
The Law Commission recommended that four Cassation Benches be set up in the Northern region/zone in Delhi, the Southern region/zone in Chennai/Hyderabad, the Eastern region/zone in Kolkata and the Western region/zone in Mumbai, to deal with all appellate work arising out of the orders/judgments of the High Courts of the particular region. It also suggested that if it is found that Article 130 of the Constitution cannot be stretched to make it possible to implement this recommendation, Parliament should enact a suitable legislation or constitutional amendment for the purpose.
The rule of law must govern the rule of life, and if life is to be humanist, compassionate and accessible to the lowliest, the law must be equally open to the humblest, simplest and little member of the community.
Judicial justice is precious to a people. The adversarial system of justice to be successful has to have the Bar as an integral part of the system of judicial administration. The Bench and the Bar together operate to dispense competent and sound justice. Justice is the salt of the earth and if the salt loses its savour, wherewith shall they be salted?
The excellence of justice, the refined process of justice and justicing, make humanity happy, harmonious and a haven for peaceful and progressive habitation. Access is negated where the system is expensive; the social philosophy of the judges and the lawyers are with the proprietariat, and the poor are priced out of an archaic system whose doors open only to the opulent, not to the indigent. Dialectical materialism is the reality in the temporal world, and where purchase of able argument from the Bar is beyond the purse of the litigant, he or she is de facto denied justice.
Economic democracy in the administration of justice commands a system where courts and tribunals are easy to reach, inexpensive to tap and facilitate finality of verdict. These fundamental features compel a democratic system of justice to be successful by means of decentralisation. Without this, the people cease to be the beneficiaries of democracy or have a voice in the state process. This applies all the more in the case of justice because justice is based on law and law in a complex society in a modern democracy is too complicated for the laity.
The Indian legal system is altogether beyond the common people. It is so esoteric that it remains alien and unintelligible to a society that is largely illiterate —without the aid of the Bar, which has a professional monopoly over jurisprudence. If the court has too many tiers and the highest court is too distant from the regions where the proletariat live and struggle for its existence, the right to justice which is the quintessence of democracy loses its spiritual value and cipherises the other fundamental rights.
The inevitable conclusion is that a decentralised system of judicature is a paramount property for democracy to have élan. A vibrant democracy must have a circuit system of administration of justice. Alternatively, Benches in different parts of the country will make the court accessible to all. Justice must be available so that social justice may become a reality.
The Bench and the Bar must be easy of access if economic democracy is not to be a travesty. If political justice is so costly that it is available only to the rich, the laws will grind the poor and the rich will rule the law.
PUBLISHED IN THE HINDU
Union Law Minister, Veerappa Moily, on Tuesday firmly rejected the suggestions for setting up Supreme Court benches in different parts of the country. “The Law Commission had recommended the setting up of Supreme Court benches. The matter was referred to Attorney General G.E.Vahanvati. He has not agreed to it. The issue is now closed’’. In an informal chat with reporters, he said the Government, was, however, open to consider the idea of establishing a system of third appellate courts as suggested by the Chief Justice of India.
“We will discuss the matter with the judiciary. But, presently, nothing concrete is on the ground. We are in the process of thinking on the issue’’, he added. Asked about the demands for setting up of benches of High Courts, Mr. Moily said principles have to be laid down to consider such requests, and for that, his Ministry was toying with the idea of setting up a committee. “Requests [for High Court benches] are plenty. We have to take an objective view on that. We have to lay down criteria by which the requests could be considered’’.
He noted that the Supreme Court had made it clear that High Court benches could be set up only with the consent of Chief Justices of the High Courts. Asked about the issue of honour killings, he said his Ministry has suggested to the Home Ministry to introduce a Bill to put an end to the problem by amending the Evidence Act to make such an offence a presumptive guilt, with all members of the Panchayats concerned made equally responsible.
The Ministry has suggested that the Bill be a comprehensive one and include a provision to amend the IPC to cover honour killings also under the definition of murder and another to reduce, if not totally do away with the notice period under the Special Marriages Act. Asked about the proposed Judges Accountability and Standards Bill, he said a Cabinet note has been circulated to the Ministries concerned and expressed the hope that it would be ready to be put up before the Cabinet in the next fortnight.
On Women’s Reservation Bill, he expressed confidence that it would be re-tabled in Parliament in the coming Budget session. Noting that the Parliamentary Standing Committee on Law and Justice has recently given its report on the Bill, he said his Ministry was would place the Bill again before the Cabinet and then re-introduce it in Parliament. He said the Government was in the process of notifying a three-member Rajya Sabha committee to look into the allegation of misconduct by Karnataka Chief Justice, P.D. Dinakaran, who is facing removal proceedings.
Mr. Moily announced that a national consultation on second generation legal education reform would be held in April for a wide ranging discussion on how the legal education system in the country could be made world class. All stakeholders would be invited for the discussion to be held on April 10 and 11.