LAW RESOURCE INDIA

India’s judiciary is not above the law

Posted in JUDICIAL REFORMS, JUDICIARY, JUSTICE by NNLRJ INDIA on January 23, 2010

BY KULDIP NAYAR IN THE GULF NEWS

The chief justice of India should be answerable to the people

Many view the judiciary with awe. Yet others believe that it is like any other part of society, and its reputation is being diminished day by day. When a former chief justice of India said that 15 per cent of judges were corrupt, there was a bit of shock because it confirmed the fears of the public. Since then the stock of the judiciary has fallen so much that there was hardly any notice taken of the report by outgoing Punjab governor J.F. Rodrigues accusing a judge of accepting a bribe of Rs1.6 million (Dh127,108). Indeed, people were horrified when Chief Justice of India K.G. Balakrishnan said that his office was above the purview of the Right to Information (RTI) Act, which obliges the government to disclose information. He has, however, backed down after the judgment by the Delhi High Court that said “Democracy expects openness and openness is concomitant of free society.” If the Prime Minister’s Office is answerable under the RTI, why shouldn’t the office of the chief justice of India be? It could not be dealing with matters that are more delicate.

Indeed, people were horrified when Chief Justice of India K.G. Balakrishnan said that his office was above the purview of the Right to Information (RTI) Act, which obliges the government to disclose information

Indeed, people were horrified when Chief Justice of India K.G. Balakrishnan said that his office was above the purview of the Right to Information (RTI) Act, which obliges the government to disclose information

Insult

It would have raised the prestige of the chief justice if he had accepted the high court’s judgment. His deference to the high court was appreciated. He gave the impression that he was referring the matter to a third party to decide whether the RTI was applicable to him. But his reported decision to take the appeal to the full bench of the Supreme Court or to the five-judge collegiums over which he presides makes a mockery of the justice system, apart from the slight to the Delhi High Court bench. If only a favourable appeal was in Balakrishnan’s mind, why make a tamasha of deference to the Delhi High Court? Would the chief justice of India have allowed an appeal had the Delhi High Court upheld the idea that his office was above the RTI? I mean no disrespect to him when I want to remind him that not only Caesar but even his wife had to be above suspicion. He acted like a person whose pride had been hurt. Yet he could not bypass the high court’s observation that the accountability of the judiciary could not be seen in isolation and the chief justice’s office must be answerable to the people in ways that are transparent.

When the government claims to be transparent, why should the chief justice of India avoid openness? There is a law that binds the government to give information on its decisions. This is how a democratic government should function. The Supreme Court has itself said in a judgment that a voter — a person above the age of 18 — has the right to information about the contesting candidates. In the Union of India versus People’s Union for Civil Liberties, the court ruled that to maintain purity of elections and a healthy democracy, voters are required to be educated and well informed about the contesting candidates. Such information should include assets held by candidates, their qualifications and whether he or she was involved in a criminal case and if the case was decided, its result. If the case was pending, it should be revealed whether a charge has been framed or cognisance has been taken by the court. There is no reason to suppress the relevant facts. What the Supreme Court held holds true for all citizens. Balakrishnan says the allegations against Karnataka High Court Chief Justice P.D. Dinakaran have been raised after it was suggested he be elevated to the Supreme Court. At a time when the Rajya Sabha has admitted a motion of impeachment against Dinakaran and the vice president and the chairman of the house has appointed a committee to probe the charges, Balakrishnan’s observation smacks of partiality.

Allegations

The allegations against Dinakaran have been endorsed by 75 MPs. The charges relate to securing five housing board plots in the name of his wife and two daughters, entering into benami transactions and acquiring agricultural buildings beyond the ceiling limit. The fact that these allegations were not made earlier in Dinakaran’s career does not mean that they are unfounded. The committee is yet to go into the charges. The Union government’s proposal to pass a law to prevent tainted persons from becoming members of the higher judiciary is a welcome step. But how will the government do so when the collegiums of the Supreme Court judges are the final authority? Dinakaran was recommended for elevation by the collegiums, over which Balakrishnan presided. The government has to handle the situation delicately and adroitly. Otherwise, the judiciary and the executive could clash. Both constitute pillars of the democratic structure. A crack in either of the two can harm the structure itself.

Kuldip Nayar is a former Indian high commissioner to the United Kingdom and a former Rajya Sabha member.

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2 Responses

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  1. danendra jain said, on January 23, 2010 at 08:55

    Would prosecuting and punishing persons for perjury (false evidence) improve our legal system? Many similar questions pertaining to Indian courts arise in the minds of aggrieved person in the country, but he finds no solution other than bearing with injustice.

    Judicial reformation has not taken place during last six decades despite several promises made by prominent leaders. At least during last ten fifteen years many stalwarts like Mr. Mr. Advani, Arun Jaitley of BJP, Manmohan Singh, Mr. Bhardwaj law Minister, Mr. Singhwi of Congress Party or Mr. Somnath Chatterjee of CPM or Lalu Yadav of RJD and even retired judges and Chief Justice of India have expressed the need of judicial reform in the country but all failed to make it a reality.

    Judicial reforms include many ideas like Prosecuting and punishing persons for perjury or providing protection to witness exposing the truth, eliminating the chance of backtracking by a witness from written or oral evidences given by him in any court, punishing false complainers, expediting court proceedings to ensure time bound delivery of justice , punishing judges who give adjournment after adjournment to give comfort to one party or the other after taking bribe, making advocates accountable and punishable and so on …

    If above mentioned ideas and many other similar contemplated amendments are made and executed honestly; it will be complete change the picture in Indian courts and police stations. But unfortunately no concrete steps have so far been taken. Only task force committees are formed, reports are submitted, debates take place and finally the issue of judicial reformation and promise of shortening delay in justice are kept in abeyance.

    This is why crime graph of India is increasing day by day, year after year. This is also a bitter truth and open secret that police do not register FIR in Thana only to show false and fabricated improvement in crime situation of an area. This is the primary reason that Bhopal Gas case , Bofors case, Telgi stamp scam, Arushi Murrder case, Ruchika suicide case ,Babri demolition or Godhra Hatyaknad case or 1984 sick riot cases , Lalu’s chara Ghotala case and many more similar but important cases have been pending in Indian courts for two decades and more.

    If by any legal amendments our country is able to create fear in the minds of wrong doers I think there will be complete turnaround in law and order position of the country and there will be definite reduction in the acts of Naxal oriented extremism or foreign based terrorism. It is pity that in our country criminal are not afraid of legal system; it is only innocents who avoid going in courts or police stations to lodge their grievances in fear of repercussions.

  2. Babubhai Vaghela Ahmedabad India said, on January 23, 2010 at 13:36

    Judiciary is not above the law and all the Judges who have been accused of corruption and against whom the complaints have already been lodged must be impeached and no one Judge should be singled out for impeachment but, due to politics, it is happening.
    Even moral corruption at higher level is much more damaging than physical corruption, That is why when a PIL from a genuinely concerned common man, filed in unquestionably in larger public interest gets dismissed with the remarks – We find no reason to entertain this Public Interest Litigation at the
    instance of a person, who is unconnected with the Institute. – , it becomes a serious area of concern on judicial accountability.


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