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Judiciary on trial

October 22, 2010

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THE judiciary is facing questions about its functioning. It is not only the backlog of cases which horrify people but also the judges’ lessening integrity. Flames are reaching even the highest in the judiciary.

The media response is wishy-washy because it is afraid of contempt proceedings. But intrepid lawyers in India, Pakistan and Bangladesh have shown that they are not hesitant to cover the ground where even angels fear to tread.

The Supreme Court at New Delhi has such a challenge confronting it. Two leading lawyers, Shanti Bhushan, former law minister, and his son Prashant Bhushan, known for his battles against human rights violations, have alleged that as many as seven retired chief justices of India, all living, have received one favour or the other.

A few weeks ago, Prashant Bhushan said in an interview that certain chief justices have indulged in “corrupt practices”. He dared the court to try him for contempt. A senior Supreme Court lawyer, Harish Salve, moved the court for initiating contempt proceedings against Prashant. The court issued a notice.

Nothing happened for many days. Shanti Bhushan followed the son and said in the court of the chief justice that certain retired chief justices were corrupt and submitted a sealed envelope to the chief justice of India, S.H. Kapadia. Shanti Bhushan challenged the court to proceed against him for contempt of court.

Prashant has now given details of transactions which the alleged corrupt chief justices are supposed to have indulged in. Some of these instances have been publicised earlier and the judges were generally exonerated. However, the surprising part is the stark silence of the Supreme Court.

A famous retired Supreme Court judge, Krishna Iyer, has demanded in an article that Shanti Bhushan and Prashant Bhushan be punished for making “false charges” or their allegations must be scrutinised by an independent authority. He has, in fact, tried to expand the case by demanding a probe into the charges against other judges.

The chief justice has remained quiet. No newspaper has followed up on the allegations. No television network has picked up the story. What surprises me is the lack of reaction either from the bar or the government. All seem to have taken the charges in their stride. Yet the dust of time cannot cover up the tracks nor can it push the cases under the carpet.

The Supreme Court has to act if it wants to salvage its prestige. It is not a political matter where the affected party does not want to retaliate. This concerns the judiciary, which is the custodian of the constitution that determines the contours of governance. The court has no choice except to pick up the gauntlet.

If the two lawyers are guilty of making unsubstantiated charges, they must be punished. But if their charges are correct, then the public must know every detail. How I wish the country had the institution of ombudsman (lok pal) in position.

An administrative reforms commission proposed it as far back as in 1966. The law ministry has said belatedly that a bill to create the machinery of lok pal would come before parliament at the earliest. But do the allegations hang fire till then? There is also a proposal to bring a bill on judicial accountability. Even if this is passed, it would be some time in the middle of December when the six-week winter session of parliament concludes.

One suggestion is that the matter be referred to the parliamentary standing committee on law. Parliament must realise that the judiciary is independent of both the legislative bodies and the government. So many battles have been fought by stalwarts in the judiciary and the government to draw a line between the two. It is the understanding between the two which keeps governance on an even keel.

What can the parliamentary committee do? The constitution provides for impeachment of judges. But the process is so long that no judge has been impeached so far.

I cannot think of a better way than appointing a 14-member tribunal comprising four sitting judges of the Supreme Court, six senior-most chief justices from the states and four from among the former attorney generals and topmost lawyers in the country. The tribunal should sit like an open court. Transparency in such matters is essential.

Yet I have found that the judiciary is itself circumspect when it comes to deciding on the government’s indiscretion. A few days ago, it was the Supreme Court which made a graceful gesture. It did not join issue with the prime minister when he interpreted the court’s order as interference in policy matters.

The point which the Supreme Court made — and which was lost on the executive — was that food grain was too scarce a commodity to be wasted. A court-appointed committee found 67,000 tonnes rotting in Punjab and Haryana. Therefore, it made sense when the court directed Sharad Pawar’s agriculture ministry to give away food to the poor when it had no storage facilities. For the prime minister to state that the court should not interfere in policy matters was a provocation which the court let go.

Indira Gandhi embarked on the journey to personal rule when she thought that the judiciary should be “committed”.

Ultimately, it became clear that what she meant was that the judiciary should be loyal to her. The result was the imposition of the emergency which suspended even fundamental rights. There is nothing to suggest that Manmohan Singh is of Indira Gandhi’s ilk. But he has to be careful of his words.

Dr A.P.J. Abdul Kalam said when he was president: “In a mature democracy, it is important that judges are independent both of parliament and the government.”

Judicial review is a basic feature. This was upheld in the Keshvanand Bharti case while underlining the indestructible basic structure of the constitution. It is the duty of the court to examine what the executive does. Someone compared the government with the raging river which requires firm banks to contain it. That dyke is the judiciary.

The writer is a senior journalist based in Delhi.