A faraway justice

The main reason is that the quality of judges is going down and, along with it, the disposal of cases is lessening. Most leading lawyers are reluctant to join the judiciary, although the emoluments have been enhanced considerably. Sadly, even those who are appointed are generally not the best from among the lawyers available. Politics has begun to play an increasingly overbearing role. Although governments have little to do with the appointments, resourceful law ministers manage to get some of their men in. Indeed, the judiciary is not the same after the supersession of judges in 1973 and during the Emergency (1975-77). When society has lost the awareness of what is right and a desire to act according to what is right, it is not surprising that most institutions show no realisation of what is wrong.

The problem facing the nation today is not merely how to clear the arrears of cases but also how to restore the judiciary to its pristine glory. When a retired chief justice of India says that 20 per cent of the higher judiciary is corrupt, there is reason to worry. But I have not seen any follow-up by the government or any outcry by the public. The prime minister has justifiably emphasised accountability. But this cannot come from within. It will not be taken seriously. The appointment of a judicial commission, drawing eminent people from other disciplines, has merit. Why should the United Progressive Alliance be against it? Strangely, the first statement that Law Minister H.R. Bharadwaj made on assuming office was to announce that there would be no judicial commission, although the Congress was a party to the draft legislation the BJP-led government had formulated.

I am of the view that a lawyer should not be made law minister. He loses the view of the whole in the thicket of legal details. He comes to ingratiate himself with the judiciary on the one hand and the bar on the other. He tends to lose objectivity. The attorney general and the solicitor general can be counted upon to give the government advice on legal matters. A lawyer can be appointed deputy law minister to reply to legal points raised in parliament during Question Hour or in the course of debates. The law minister should be proposing measures for social and economic justice, pursuing clearance of cases on a day-to-day basis, helping the process of selecting judges long before vacancies occur and providing facilities to litigants. At present, he is distant from everything except that which interests his party. For instance, the confrontation between the Tamil Nadu lawyers and the state chief justice could have been avoided or sorted out long ago.

Ultimately, the clearance of piled up cases will depend on the new spirit the judges, lawyers and litigants can infuse in the legal system. All of them must join hands to evolve procedures — and attitudes — to ensure that cases are not stretched endlessly. Perhaps, there should be a timeframe for the disposal of a case. One immediate step that may immediately lessen the arrears of cases is to curb central and state governments from filing cases to show their ‘‘alacrity and independence.’’ A survey in Karnataka shows that in 65 per cent of civil cases, the government is the litigant, sometimes on both sides. Most cases are in the form of appeals and the survey points out that 95 per cent of them have failed. Adjournments waste precious time. A case, once begun, should be heard in entirety; some other lawyer could take over if the one who initiated it gets busy elsewhere.

One thing I have not been able to figure out even after talking to top lawyers is why an important case is pushed into the background in order to accommodate a lesser one. There has to be some transparency. Otherwise, there will be allegations of bias. I can say from my own experience how the case relating to the domicile qualifications for a Rajya Sabha member is still awaiting the constitution of a larger bench for the hearing. The case was admitted in May, almost five months ago. However busy the Supreme Court, it has to take up immediately the challenging of such acts which have implications for the country’s federalism, and the basic structure of the constitution. I am reminded of the election petition against Pratap Singh Kairon. The case was not decided during his entire tenure as chief minister. Subsequently, the petition itself became infructuous.

At the end of the day, as the prime minister has said, a judicial system is a dispute resolution system. If it does not give quick decisions, it is bound to lose its sheen. And when in the middle of all this come judges’ demands for a tax-free salary, they evoke cynicism. The judiciary should know that.