Reform should begin with the profession of law

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THE Supreme Court of India’s observation that “something is rotten” in the Allahabad High Court and Chief Justice of India Justice S.H. Kapadia’s speech during a National Law Day function (both on November 26) that good judges can be appointed within the current system in the next two years when he is the CJI are laudable. A deeper analysis of the two statements can reveal significant pointers to the state of judiciary in India today.

Over the years, the Allahabad High Court has provided several judges of the Supreme Court, including Justice Markandey Katju who, along with Justice Gyan Sudha Misra, had criticised the state of affairs in the Allahabad High Court. One cannot but admire their concern. If “a lot of complaints are coming against certain Judges of the Allahabad High Court relating to their integrity”, is the integrity of these judges likely to improve if they are posted to another High Court?

Judicial technical legalities aside, to a layperson it is extremely unlikely. The results of such actions have been known in the past when there were protests from the Sikkim High Court and the Guwahati High Court when attempts were made to transfer judges with suspect integrity to these High Courts.“Transfer is no punishment” is an oft-used explanation in the civil services whenever someone protests against a transfer, and that should be the same in the judiciary. Similarly, transfer is no cure for a suspect integrity.

It is understandable that given the complexity of the impeachment process, the options for dealing with recalcitrant judges are limited and that is why transfer is suggested as one of the so-called solutions or “strong measures”, but it actually is begging the question.The quest for an answer takes us to the CJI’s statement about proving that good judges can be appointed “within the current system”. Several inferences can be made from the statement, though admittedly not possibly intended by Justice Kapadia.

The fact that the “current system”needs to be proven implies that there are concerns about it. That it will be proved that “good judges can be appointed” is an indirect acceptance that bad, or at least not good, judges have been appointed. The concerns are obviously proved by the Allahabad High Court Bench.

Secondly, Justice Kapadia has promised that good judges can be appointed within the current system “in the next two years” when (he is) the CJI. The first inference implies that the current system is person-dependant. The basic rationale for putting systems in place is to make them free of individual idiosyncrasies but it is also accepted that systems are as good as the people who use them. Granville Austin aptly said, “(C)onstitutions, however ‘living’, are inert. They do not work, they are worked.” But there is a difference, however subtle, between constitutions and institutional systems. The main expectation from the latter is that they will work independent of human follies and weaknesses. If the current appointment system for higher judiciary is susceptible to human frailties, then there is ample justification to try a new system.

This leaves one important issue of higher judicial appointments unattended and that is the source of these appointments. On November 26, the Bar Council of India had decided to postpone the proposed All India Bar Examination from December 5 to March 5, 2011. While this, by itself, may be a relatively innocuous action, it does point to the state of affairs of the profession of law which suffers from many infirmities starting with education for LL.B., registration of lawyers, and practices followed by lawyers in courts and outside. The actions of various regulatory authorities, the Bar Councils, and various Bar Associations are not always above board. And it may not be out of place to say that something is rotten with the country’s legal profession. Clearly, it is the Bar that is the major source of recruitment to the higher judiciary. Therefore, reforming the system of appointment to higher judiciary should begin with the reform of the profession of law.

The writer is a former Dean, Indian Institute of Management, Ahmedabad


One thought on “Reform should begin with the profession of law

  1. CJI was right in indicating that judiciary must out its house in order. In recent past many allegations were made against sitting HC judges who are presently functioning in diffferent states. Mere transfer is not an answer to such issue. There must be time bound enquiry in such cases and if found guilty then either judge should resign or suspended then fianlly impeachment. Lobbying is everywhere but we can not compromise on quality and integrity. Hopefully CJI will set right some wrongs in his tenure.

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