Friday, March 23, 2007

People are supreme, not the judiciary

People are supreme, not the judiciary

Judicial independence does not mean exemption from account- ability to the people; it only means independence from the legislature and the executive

BY DR P.C. ALEXANDER

Most people will agree that among the three organs of government — the legislature, the executive and the judiciary — the one which has undergone the least degree of erosion in public esteem in India is the judiciary. During the last few years people have been watching with disgust how some unscrupulous politicians anxious to come to power or cling to power in certain states, have been indulging in shameless practices like horse trading of MLAs, misuse of the office of governor, improper resort to Article 356 of the Constitution, etc. The intervention of the judiciary to correct such distortions and to uphold the supremacy of the Constitution has served to enhance its credibility and peoples’ faith in its objectivity. However, of late, there has been a growing feeling among the people that the judiciary is averse to accepting that it is also accountable to the people, and that accountability, far from being incompatible with independence. will only strengthen it.

Judicial independence does not mean exemption from accountability to the people; it only means independence from the legislature and the executive. The fundamental principle of democracy or “government by the people” is that the people are supreme and every organ of the government is accountable to them. When people see proper systems and procedures in position, which can ensure judicial accountability their faith in the judiciary will only get deepened and stronger.

There are many factors causing concern among the people regarding the concept of judicial accountability. The long delays in the disposal of cases and the very heavy pendency of cases in the courts are important causes for the present trend of erosion of faith about judicial accountability. As of 2005, the pendency of cases in the high courts was 33.79 lakhs and in the subordinate courts, 2.35 crores. The low ratio of the number of judges to population (13 per a million as against a desirable rate of 50 per a million) is often given as one of the reasons for the heavy pendency of cases. While this may be true, many other important issues have to be addressed by the judiciary itself in order to ensure greater expediency and efficiency in the administration of justice. The practice of granting liberal adjournments, lengthy arguments by lawyers and lengthy judgments by the judges, long delays in delivering judgments after hearing is completed, multiplicity of levels of appeal, indiscriminate admission of public interest litigations, etc., are some of them. The judiciary alone can rectify these deficiencies and people cannot be blamed if they believe that the main reason for the heavy pendency and delays is the weakness in the acceptance of included in the Constitution. But here a major problem arises because the judiciary seems to believe that the power of punishment of judges should remain solely with it and not be shared with any other authority.

According to the Judges Inquiry Bill 2006 introduced in the Parliament, all complaints against the judges are to be handled only by a committee of judges appointed by the Chief Justice of the Supreme Court with himself as the chairman. The existing procedures for investigation into complaints, which may lead to impeachment provide for appointment of a committee by the Chairman of the Rajya Sabha or the Speaker of the Lok Sabha (depending on where the impeachment process is initiated), but the proposed legislation vests this power with the committee of judges. This is presumably based on the theory that judges should be judged only by judges and involvement of anyone else will be an encroachment on the independence of the judiciary.

Already the Supreme Court, by its judgment of 1993, has assumed to itself the responsibility for proposing the names of persons to be appointed as judges. Article 124 (on appointments to the Supreme Court) and Article 217 (on appointments to the high court) state in unambiguous language that appointments are to be made by the executive after consultation with the Chief Justice of India.

For 43 years after the Constitution came into force, successive Prime Ministers and accountability on its part.

The perception about lack of judicial accountability has arisen also because of what people see as soft treatment to judges accused of misbehaviour. There is no provision in the Constitution for any punishment other than removal through impeachment, and therefore, the only penalty — if it can be called so — meted out to erring judges is transfer from one high court to another. The impracticability of the impeachment procedure has been amply proved by the manner in which Justice V. Ramaswamy of the Supreme Court escaped punishment in 1993 for established charges of misbehaviour. If accountability of the judiciary is to be enforced, appropriate provisions for punishment other than impeachment have to be their Cabinets have been recommending to the President the names of persons considered eligible for appointment after consultation with the Chief Justice, and no one had disputed the legitimacy of this role for the elected executive which is accountable to the people through the legislature. Perhaps, after 1993, India has become the only democracy in the world where the head of the government has no decisive say in the appointment of judges of the high court and the Supreme Court. Of course the Prime Minister is still the authority to send proposals for appointment of judges to the President, but his role has now been practically reduced to one of endorsing the names proposed by the Chief Justice of the Supreme Court who does so after consultation with his senior colleagues.

The governor and chief minister of the state have to be consulted by the Central executive under Article 217 before recommending the names of persons to be appointed as judges of the state high court. Now consultation is made by the judiciary, but this has become a mere formality as the actual selection of the persons to be appointed is with the judiciary after 1993. The judiciary obviously is keen to have the de facto power to appoint or to punish judges as it is of the view that such a power is indispensable for preserving its independence. This claim lies at the root of the people’s perception about lack of judicial accountability.

T he main argument in support of giving this responsibility to the judiciary is that in the present situation of weak coalitions and caste and region based politics at the Central level, appointments to the high office of judges may be influenced by party and regional considerations and the quality of the higher judiciary may be seriously impaired. But the remedy for this is not divesting this important responsibility from the executive and vesting it with the judiciary. A practical solution to this problem is to have a high level judicial commission consisting of the Chief Justice of India, one of the judges of the Supreme Court, one chief justice from the state high courts, one reputed jurist, one eminent person of high national standing and the Union law minister, which will be responsible for preparing the panel of names for appointment as judges and also for dealing with all complaints about misbehaviour or incapacity on the part of judges. Such a judicial commission can ensure both independence and accountability of the judiciary without violating the spirit of the doctrine of Separation of Powers.

DR P.C. ALEXANDER was the governor ¦ of Maharashtra and Tamil Nadu and is at present a Member of Parliament (RS)

Courtesy_

DECCAN CHRONICLE

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