Legal perspective

If the Commission wants to inform itself what the nation8217;s citizenry already knows, then should the nation be made to pay for its education? In that sense, the Commission mocks at the plight of the suffering citizen who, like the politician, does not need to be told about the fifty-year history of exploitation. Yet it is this very politician that the Commission seeks to inform.

This erodes the Commission8217;s image at its inception itself. The Commission8217;s image is already severely dented for five reasons. First, limiting its composition initially to judges and lawyers is a trivialisation of the concept that a Constitution is a socio-political statement translated in-to law and not the other way round. Secondly, after the Commission8217;s chai-rman had rejected outright the idea of including politici-ans, one has been included as a token of the downtrodden and part of the ruling party8217;s package for the Northeast.

Thirdly, many of the proposed names for its membership are lawyers who have dedicated their lives to arguing successfully in the apex court for the death of directive principles and for getting the powerful off the hook.

Fourth, the office of the Commission is already seen as a political patronage for certain judges with a message for the future of the apex court judiciary, whose members in the past have resigned for contesting elections, competed for commissions, tribunals, councils, Rajya Sabha memberships and governorships. This is seen as the official counter-temptation to what some retired judges are doing under the labels of arbitration, consultation and opinions. Fif-thly, by co-opting the attorney-general, the independence of this constitutional office has been put in question.

This brings out the most co-nstructive work that such a Commission can do by having reverence for the truth. It can for the first time document how through the refusal to apply directive principles in the interpretation of tax and revenue laws and continuing with the pre-Independence British model of interpretation, the highest judiciary has deprived 8220;we the people8221; of their due benefits; how in its fifty-year history it has negated the most elementary life saving remedy of habeas corpus at critical times; how secrecy and contempt of court have made it the most unaccountable institution; how contempt power has mysteriously failed to ensure actual compliance against the powerful and why it is the only national institution that has held that truth is no defence to contempt of court and whose appointments and transfers know no publicly justifiable criteria.

The increasing socialisation of judges with certain lawyers in the name of legal associations, the stranglehold of a caucus on the legal business, the accountability of judges who have headed legal aid without making it into an effective tool for the delivery even of rights spelt out by the court8217;s judgments and the manner in which high court chief justices have escaped public accountability for their respective district courts and legal aid all this could form a pioneering chapter of national enlightenment.

From Antulay to Jagannath Mis-hra, from JMM bribery case judgment to hawala and from Mayawati to Sa-tish Sharma, it is the saga of the apex court8217;s conceptual flight when faced with political corruption. From Ramaswamy to the Code of Ethics for Judges, it is the story of the judiciary8217;s internal crisis. The Commission can make a difference in the subject its members know best 8211; the courts. But unlike the secrecy prevails in the national judiciary, will the Commission hold its proceedings in public or go the Union Carbide and Hawala way of holding certain hearings of the apex court behind closed doors?