Experts question need for judiciary reform

Accountability of judges and a National Judicial Commission to oversee appointments to higher judiciary, deal with complaints of misconduct and empowered to reprimand and censure judges, is the need of the hour, he says.

However, senior advocate P N Lekhi feels the quot;Supreme Court is still in its quest for identity and as such barren where any social or constitutional landmark judgement is concernedquot;.

Agrees another senior advocate K G Kannabiran, quot;Courts have neither promoted democracy nor personal liberty or social, economic and politicial justice.

quot;The problem with the judiciary is that no systematic attempt has been made to contain the absolute powers of the courts without impairing their independence.

quot;Any attempt at reforming the judiciary leads to its being painted as aimed at erosion of judicial independencequot;, he says.

Judicial independence is not a value in itself, it is expected to subserve the social values that have been incorporated in the constitution, says Kannabiran.

quot;This independence coupled with contempt power has made the institution absolutist. Such an institution can never be the bulwark of democracy,quot; says Kannabiran.

Admitting there were quot;corrupt elementsquot; in the judiciary, Justice B P Jeevan Reddy, chairman, Law Commission of India, said a permanent mechanism should be evolved to keep a constant vigil on them.

Accountability of individual judges depended on their integrity, wisdom and above all committment to justice, says reddy while also stressing on the need to monitor appointment and transfer of judges.

Venugopal says it is all the more important because quot;there is a perception that judges and judicial process are not open to discussion and healthy criticism. An open, frank and healthy discussion of the judiciary should be encouraged.quot;

The SC Bar Association president suggested a commission on the lines of the Californian system. California has a judicial commission comprising five judges of the state supreme court, two attorneys approved by the state bar and two commoners appointed by the governor. Its main function is to monitor the conduct of judges.

Lekhi also agrees that the basic flaw is with the appointment of judges, as he cites the case of justice v ramaswamy, who faced impeachment in parliament.

He says the apointees should be subject to rigorous selection process, open public examination, where they should be made to declare their assets and how they owned them and the entire process should be televised.

Constitutional expert B P Rao says as on january one this year, there were 156 vacancies for judges pending in high courts all over the country.

He attributed it to quot;not much charm left in the job and lack of post-retirement benefitsquot;.

It is also reflected in the fact that the apex court over the years is quot;yet to give an exemplary judgement even though it had numerous occasions to redeem itselfquot;, says Lekhi.

A golden opportunity to prove its integrity was lost when it put its stamp of approval on sub-version of the constitution in the garb of an internal emergency 8211; ADM Jabalpur vs S Shukla case 1976.

That was the only blotch on the judiciary so far, feels constitutional expert Rajeev Dhawan, otherwise the apex court has come up with a few landmark judgements which have not only made life easier but also turned the course of history.

The courts particularly the Supreme Court have by judicial activism and creativity breathed life into the various constitutional provisions to enable the disadvantaged sections of society, mired in illiteracy and poverty, to realise their rights, says venugopal.

Citing some landmark judgements, he says, 8220;The most noteworthy ruling came in the keshavananda bharati case, which held that the basic structure of the constitution is immutable, it also held that the power of parliament to amend the constitution can not be exercised in a manner that would be against any of the basic features that constitute the basic structure of the constitution.

quot;In the S R Bommai case, the apex court dealt exhaustively with the scope of article 356 and the exercise of power thereof, including judicial review of any action under the said article.quot;

The Supreme Court made life easier for the weaker sex when it laid down guidelines and norms for the effective enforcement of the basic human right of gender equality and guarantee against sexual harassment at work places, says senior lawyer Meera Bhatia.

And in the Shah Bano case it got divorced Muslim women, unable to sustain themselves, the right to maintenance, in a bold decision cutting across religious lines, says she.

The orders passed by the Supreme Court in their range and effect are unparalled in any part of the world, claims Attorney General Soli Sorabjee.

Despite disillusionment with the working of the legal system and the judicial process, the apex court is the one institution in which citizens retains some faith, he adds.