JUDGES TO BE SELECTED THROUGH EXAM

IT REQUIRES MASSIVE DOSE OF REFORMS

Veerappa Moilly has taken over the guard of Ministry of Law and Justice; Bhardwaj has been changed. The message perhaps is to push some long pending reforms forward.

The reform in Judiciary is a long pending issue and no Ministry actually wanted to pursue drastic reforms because it is most of the time very contentious and invites wrath of judiciary. If fact one small amendment in the Criminal Procedure Code (section-41) invited intense wrath of one section of lawyers and protests are still going on.

Indian Judiciary is a British legacy and many remnants of this legacy still exist with meagre or naught changes. The present form of Judicial System was laid in year 1833 when Supreme Court was established in Calcutta.

The debate on Judicial Reforms has been a topic of discussion either in legal luminary or in urban middle class; therefore, it unfortunately, could not become a prime concern of common man. Discussions in public domain on this issue have also been confined to identification of problems, rather than anatomy of the system itself. It is only after plethora of instances of corruption charges in the higher judiciary, that media and Civil society took up the thread and initiated the debate and took it out of drawing room of legendary figures.

The new govt has set 100 days agenda for itself and Reforms in Judiciary is obliviously and happily one of important agenda.

ISSUES OF IMMEDIATE CONCERNS-

1. Huge pendency of cases-. The system seems crumbling when one sees the huge stockpiles of case pending at different levels of judiciary. On March 2009, as many as 50,163 cases were lying pending in Supreme Court, 38.07 lakh cases in different High Courts in January 2009. Astounding 2.64 crore cases were pending in lower courts across country on 1^st January, 2009. Huge 24,130 cases under PC Act alone are pending against govt officers on January 2009.

Obviously the system is on the verge of collapse if immediate remedial measures are not undertaken.

Pendency is perhaps first and the foremost concern because it affects general public, unfortunately the poor masses. The Cases are lying pending for decades and expenses are mounting. Justice delayed is justice denied, is an old saying but is still relevant. For many of us, these figures may be a topic of academic pursuit but for those who suffer, it is a nightmare. Hearts of any sensible human would mourn to learn that a man is languishing in Jail for decades on the charges of an offence for which maximum punishment is only few months. Such Cases erode faith in our system which many find expressions in rabid forms. It needs to be addressed immediately therefore.

2. Insufficient number of courts and judges-. In India there are 15,000 courts of which 13,600 are functional. The ratio of judges and courts to population is hopelessly less as compared to many developed countries. There are many states where full High court has not yet been started. Some experts in this field however do not share the common perception about this problem. They opine that merely by increasing the number of Judges and courts, this problem would be mitigated and pendency would be decreased. The existing system of working hours and pace of disposal have to be taken into account, they add.

3. Scope of appeals and revisions- This problem has assumed monstrous proportions. Our Judicial system in fact provides nearly inexhaustible scope of appeals, revision and many other scopes in different nomenclatures. It is mainly due to this provision, the rate of conviction is low and pendency is high. It, on the one hand, puts enormous pressure on the system and on the other hand makes moneyed people less scared about the law. Here again the poor are the most sufferers. Indian Evidence Act 1871 which is a colonial law is obsolete and time consuming. The provisions of Main examination, Cross examination and Re-examination of witnesses and accused, kill maximum time of the proceedings and delay the final verdict. The rules made by courts for conduction of proceedings are such that it favour lawyers and strain citizens. Provisions of filing petitions amidst the proceedings by lawyer are proving very disturbing as well as time consuming. The proportion has reached to such a magnitude that even Apex court has reprimanded the lawyers for these behaviours. Laws therefore, are urgently required to stop these nuisances for the sake of justice.

4. Inordinate delays in disposal of cases- the delay on the part of judges in pronouncing final judgement should be dealt with without delay. We have some provisions in Criminal Procedure Code in matters of preventive section proceedings like section 107, 144 and even 145. Similar provisions should be made in civil courts and higher judiciary that particular nature of cases should be disposed off in such and such time frame. It would help in making the courts and judges more accountable and definitely the number of disposal would accelerate.

5. Issues related to appointment of judges and Cases related to corruption to them- the provision of appointment of judges has been made under Article 124 of Indian Constitution. The provision has been made to make judiciary independent as the president has to consult the CJI before making appointment of judges in HCs or SC. In advocates on record vs Union of India case, the Supreme Court ruled that such consultation shall be concurrence. The court laid down the procedure of appointment and Collegium of judges was made to recommend to the govt appointment of judges. Thus the govt or parliament is left with virtually no role in matters of appointment in higher judiciary.

STEPS ON ANVIL TO REDRESS THESE ISSUES-

Our Judicial system is on sound footing and it second to none; nonetheless there is scope of its betterment. There is list of pending issues pertaining to reforms in Judiciary. Bills related to judges accountability, appointment procedure, reservation in appointments in higher judiciary, speedy etc are likely to come up in the next few years. Naturally the Ministry of Law and Justice would be faced with challenging tasks.

Judges accountability Bill-The corruption in Judiciary is very perturbing for all of us because for many of us Judiciary remained last hope of Redressal of grievances and protection of civil rights. This however does not mean that it is immune to all sorts of societal infections. The Judges Accountability Bill seeks to make judiciary more accountable and discourage case of corruption. This bill aims at amending some provisions of Judges Inquiry Act 1968 in order to make the process of removal of judges less cumbersome and complicated. In fact Article 214(4) of Constitution provides for removal of judges whereas; Judges Inquiry Act 1968 describes the process of removal. The process is so lengthy and slated towards the Judges that not even a single judge so far has been removed after the Constitution came in vogue. In fact one Justice Shiv Prasad SInha of Allahabad High Court was removed on the recommendation of Federal court by the then Governor-General C.Rajagopalchari in 1949.

Secondly- the appointment procedure of Judges in Higher Judiciary is also likely to come before the parliament. This has been one issue where a lot of hue and cry has been made. Many a time confrontation between Judiciary and Parliament seemed imminent, fortunately perhaps it the strength of our democratic institution that standoff has been defused and crisis has been averted.

Information available before the public domain indicate that govt is determined to introduce a bill seeking amendment to Article 124 and make appointment in higher judiciary more institutionalise and transparent. Allegations have been time and again labelled that some elite families of India have monopolised higher judiciary and it is not unfounded also. To restore pristine glory and re-shape and revamp this august institution of ours, such steps are urgently required.

Thirdly- the govt has already taken steps to ensure that assets judges are declared. The bill in this regard has already come up. Provisions should be made in such a way that they are not jargonised and very purpose made thereto is defeated. After all ours is a democracy and the principle of equality before the law has been universally accepted, therefore any attempt to make it ambiguous should not be allowed.

There are other issues also on which legislations are required. The colonial system of vacations in summer and winter should be discontinued. The working hours of courts can be increased. Some states like Gujarat has introduced evening courts, this practise may be introduced in all states. After all it is the citizen for benefit of whom, govt and other institutions have been erected. Time has come to perform or perish. Hopefully we are performing and therefore we shall continue to stand tall.

VERDICT ON GAY; WHICH WAY WILL SOCIETY GO?

BEGINNING OF CHANGE IN ETHOS?

The judgement of Delhi High Court which seeks to legalise gay relationship is all set to trigger a national debate between forces representing modernity and forces representing old order. The Court said that Law outlawing homosexual acts was discriminatory and ‘violation of fundamental rights.’

The judgement is based on the concept that Indian Penal Code (IPC, 1860) is one and half century old colonial law and does not represent the changing social and ethical order. It is of common knowledge that section 377 reads ‘whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with 152[imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.

Explanation- Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.

The Delhi court while hearing a PIL filed by one NAJ, an NGO, has held section 377 as an infringement on the fundamental rights enshrined in constitution (article 21). This judgement is going to have far reaching ramifications in socio-religious life of many Indians and would have profound impact on the legal architecture of this country.

LEGAL IMPLICATIONS- the decision of Delhi High court will have its impact in the state of Delhi only, and other parts of territory would be governed by the same section of IPC, but this land mark judgement would necessitate the Union govt to bring about amendment to the colonial Penal code. This case shall certainly be quoted by the lawyers in related cases in other parts of the country and is going to affect judgement thereto.

Secondly, other sections like 309 of IPC and host other such provisions will be subjected to such societal and legal scrutiny because many people are of the opinion that this 150 years old law should either be scrapped and replaced with a new one or at least amended to such an extent that vestigial instincts of erstwhile order are removed. The legal framework and laws should also change at the same pace at which society is changing, they say, otherwise the laws and customs etc would be rendered meaningless. Thus we can expect in near future, more such land mark judgments or huge dose of constitutional and legal amendments. Our legal system is all set to pass through rigorous tests.

SOCIAL IMPLICATIONS- every change is a painful process, therefore the society is not going to take this change without resentment. The force of status quo is bound to fight back. In fact strong reactions have started pouring in the social panorama. It seems that the society is trying to take recourse to newer ethos and slowly discard older values. It is clash between ‘newer order and older order’ also. On the one hand, we have one India where younger generation is competing with west. This generation wants to move in resonance with the changing world. It aspires to follow new global social, financial, ethical and political order. Globalisation, Liberalisation and Privatisation for them are not just a government policy, but a way of life. They want western type of liberalism and freedom, which unfetters them of all the ethical, moral and social shackles, but on the other hand, there is one group or you can say one generation which is not cosmopolitan and is living with mundane realities. There are people who have to fetch water from distant wells to satiate thirst. They have to collect fodder for their cattle so that they can earn their livelihood. They collect leaves to feed their babies. They don’t even spend 12 Rs/day because they do not have the money to spend. For them, life means continuous struggle for subsistence and not existence. Fundamental rights and gay relationship and many such issues for them are nothing but a joke.

There is also one more group of people in India. These people believe that they are the custodian of social order and society cannot and should not change without their consent and concurrence. They believe that ethical and social values cannot be dictated by anyone other than themselves. This judgement is a jolt on such forces because this imminent change has not come from them but from other sources. They argue that just to satiate the desires of some people who indulge in ‘Unnatural sex’, legal and social order cannot be changed. They have a valid point when they say that ‘will the courts legalise sex with animals then because some people do enjoy animal sex? Some children may enjoy sex with grownup lady, will the court legalise it also?

Thus the coming days these issues are likely to constitute topics of discussion for media and middle class, but legalising gay or punishing them makes no difference for them who do not enjoy even natural sex amidst abject poverty.

DO INQUIRY COMMISSIONS SERVE ANY PURPOSE?

HOW LONG WILL IT STAND?

Justice M.S.Liberhan Commission, which was constituted on 16th December, 1992 to probe into demolition of Babri Masjid, has submitted its voluminous report to the Prime Minister after 17 years. About 90 Million rupees has been spent on it which saw 399 sittings and as many as 48 extensions. It was asked to give its report within 3 months.

The report now would be tabled on the floor of parliament and is likely to trigger a debate. Perhaps some more committees would be required to study thousand pages report and thus unending process of logical conclusion is likely to start. There is hardly any inquiry commission on the report of which concrete actions have so far been taken. The coming session of parliament will perhaps again witness uproar between treasury and opposition benches.

It is in this backdrop, an attempt has been made to understand intricacies and legal stand points of such Commissions in this article.

This issue has again come to fore that ‘Is Inquiry Commission a substitute of criminal prosecution? Do these Commissions serve any purpose? Is it not an eye wash? Are these Commissions able to bring culprits to book? Etc. After all, they are putting in enormous cost on public exchequer, the hard earned money of ours.

CONSTITUTIONAL AND LEGAL ASPECT-To understand the entire issue, one has to discuss the Commission of Inquiry Act, 1952 itself. Before this Act came into being, the Government used to order an inquiry by executive notifications under Public Service Inquiry Act, 1850. Sometimes, they used to enact adhoc and temporary legislations also. To meet the public demand for impartial and judicial inquiries, the Government thought to come out with a comprehensive legislation, which resulted into passage of this Commission of Inquiry Act, 1952 in 1952.

Since its enactment, the constitution of Inquiry Commissions has become a tool for the Government to white wash the public anger and delay and diverts the attention of both public as well as media.

Since Independence, more than a hundred Inquiry Commissions have been set up, but a very few have served the purpose. Reasons are obvious. First, the provisions enshrined in this Act are not of deterrent in nature and secondly, most of the time the Commissions are set up under retired Judges for obvious reasons. Section 4 the Act provides for powers and it is clear that the Commission has no power to compel a person to adduce before it and give evidence. It cannot pass verdicts or judgements which could be enforceable. The helplessness is such that when any offence is committed in view of or presence of Commission, the Commission shall forward the case to the Magistrate for trial as provided in Criminal Procedure code.

The appointment of retired Judges, as head of the Commission is very much suitable for the Government. It is not merely a chance that one Judge has headed more than one Commission. The public perception is such that these Inquiry Commissions are becoming post retirement placement schemes for the favourite retired Judges.

UNENDING LIST OF COMMISSIONS- We have a long list of such Commissions, which have made inordinate delay in submitting their reports. Many of them have taken decades in so called’ conducting inquiries’ and even then the report which was submitted were so voluminous that we required another committee to find out ways to implement the recommendations. For example, as many as ten Commissions or committees have so far been set up with regard to the anti-Sikh riots in Delhi after the assassination of Mrs Gandhi. First of all, Marvah Commission (Ved Marvah, Addl C.P.) was set up in November, 1984. The Commission was about to finish the assigned task, but it was abruptly wounded up in May, 1985 and a new Commission headed by Justice Rangnath Misra was constituted and was asked to carry out the further inquiry hitherto done by Marvah Commission. But surprisingly the terms of reference was, to find out whether this was an organised riot only? This Commission submitted its recommendations in August, 1986 and recommended for setting up of three committees to do further work. Therefore; Kapur-Mittal Committee in February, 1987, Jain-Banerjee Committee in November, 1987, Potti-Rosa Committee in March, 1990, Jain and Agarwal Committee in December, 1990, and finally Justice G.T. Nanavati Commission in 2000 were set up. Incidentally, the same Judge was made in charge to inquire into Godhara incident. Nanavati has submitted first part of the report and final report is yet to come. No one knows when this commission will complete its job and when entire truth and facts related to this incident would be made known to all.

It is needless to mention that what has happened to reports and how much amount have been spent on these exercises. Has any prominent leader been punished so far? Many persons, against whom levelled charges were being inquired into, have died. Such are the frustrating results of these Commissions and Committees.

Similarly, Justice B.N. Kripal Commission of inquiry was set up on 13th July, 1985 to probe into the bombing of Air India Flight 182 Boeing 747 on 23rd June 1985 which led to crash of this plane into Atlantic Ocean leaving 329 passengers including crew dead. The Commission submitted its report after extensive tours of countries like Canada, USA etc, but when the prosecution began, nothing could be proved and none could be punished. The entire ‘investigation and inquiry’ went in vain. It is needless again, to calculate the amount which was spent on such inquiries.

After ‘tehelka’ expose, one Phukan Commission was set up to look into it. Everyone saw the tape on television and the then Government just to avoid immediate legal course, set up this Commission. In May, 2005 the Newsweek reported that Justice Phukan along with his wife and eight officials used IAF plane and went to Pune- Mumbai and Shirdi. The Ministry later said that the Judge was not entitled to use the military plane and it was made available to him by the then government in order to influence the Judge. Such allegations and incidents definitely erode public faith in such Commissions. The situation is such every Government in power use this provision to oblige the retired judges.

In Bihar for example, one Justice Amir Das Commission was set up to probe into the alleged connections of political leaders with a banned outfit called Ranveer sena in 1997. After elapse of more than eight years, the Commission could hardly do anything except for some tours and recording of statements some leaders. It was finally wounded up in 2006. Similarly one Justice Ali Ahmed Commission was set up to look into excess withdrawal in 1996. What recommendations did it submit or what actions had been taken, hardly anyone knows.

Commission under Justice RCP Sinha and Justice Samsul was set up on Bhagalpur communal riot in 1989. Reports were submitted in 1995. But when the new Government came to power it set up NN Singh (retired Justice) Commission to re-investigate the matter again. In 2008 one Commission under retired judge Sadanand Mukherjee was set up to probe into the Kahalgaon police firing. This commission is still a non starter vis-a-vis investigation of the incidence.

When Kosi eastern embankment was breached on 18th August, 2008, there were lot of allegations and counter allegations. The Government constituted a Commission under Rajesh Walia, again a retired Judge to probe into it.

The question that every sensible citizen would like to ask is that, whether Commission is a substitute of criminal investigation? How can a Judge be better equipped to do forensic test, do scientific investigations than a professionally trained police officer? Has the Commission power to make arrests to the persons likely to tamper evidences? The effectiveness of the Commission or for that matter the Commission of Inquiry Act was looked into by two Judge commission, which was constituted in 1987, it gave its observations and said the Act as ‘ ineffective and toothless’.

COMMISSION AND INVESTIGATION-Ours is the criminal justice system, which is based on the twin pillars of investigation and dispensation of justice. How can the Judiciary be asked to do the work of investigation, which is the work of the State as enshrined the law of the land? The Criminal Procedure Code and for that matter entire Criminal Justice System is erected on this principle and perhaps it is due to this principle, that the Judiciary and Executive have been completely separated in 1973, when the Code of Criminal Procedure was amended. After almost every police firing or so called fake encounters, the government sets up Commissions of Inquiry and tends to defer the problem so years. The list of such commissions is long and still names are being added to it. Once the commission is set up, public tends to forget the real issue and Commission embarks on an unending process of investigation, inquiry and facts finding. It took years and years in submitting the reports, which are so voluminous that it again requires some committees to suggest measures to implements the recommendations. What is the use of such reports, which themselves are not obligatory and mandatory for the Government to implement. Millions and millions of rupees have so far been spent on these nearly futile exercises, but the investigating agencies are languishing in the same state for years. Instead of modernising and equipping the investigating agencies, we go on doing cosmetic make ups. Public perception is therefore that, if the Government wants to bury the truth, it sets up a Commission. Public memory is short and it tends to forget everything. In the mean time these Commissions are becoming a post retirement engagement for Judges. Ours is an independent Judiciary and that is why Article 220 provides for restriction on practise by the retired Judges. The idea is that there should not be any scope whatsoever, of favour or disfavour by the serving Judges. By appointing the retired Judges in these Commissions or for that matter in any other body is a clear cut violation of the spirit of the Constitution itself. This type of public perception is detrimental for our democracy as well as Judiciary also. Judges should perform the duty of dispensing judgments only and not do the work of investigation; otherwise the entire edifice of our institutions would start eroding and crumbling.