When the scales of justice tilt too far

For over a decade, we do not know if Laloo Yadav is a fraud and embezzler or whether he is a well-meaning, honest, folk hero. For years on end, we do not know if Jayalalitha is a paragon of virtues and an upholder of the law, or if she is a swindler. Meanwhile these, and thousands of such other people like Sukh Ram are allowed to wield enormous powers. Dig into any court anywhere in India, at any level, you will find cases without number languishing without progress for years on end— the litigant’s interests is nobody’s concern. Go to any rural area in India, and you will come across land related cases, civil disputes and criminal proceedings pending for decades, with citizens dangling at the end of it with little hope and much despair.

Nobody in the country appears to be unduly perturbed at the crawling pace of judicial proceedings. There is no acknowledged public awareness that the delays and other malaises are systemic issues, which need to be addressed. The key beneficiaries viz. the advocate community, the investigating agencies and the prosecution systems find the proceedings extremely lucrative; the judges amiable and in no hurry, and liberal with their adjournments— two hoots to the citizen!

However, it is almost as if a very passive judiciary suddenly becomes very alert when its perceived self-interest is threatened or an attempt is made, however feeble, to break the cocoon within which it rests. This may be an attitudinal problem of not only the judiciary but of the citizenry at large; reluctant to make changes to the system, to be proactive, to shake it from its lethargy, make it decision-oriented and make all interactions time bound. It is time for a major attitudinal change.

The progress of the establishment of the Competition Commission of India (CCI), meant to replace the erstwhile Monopolies and Restrictive Trades Practices Commission (MRTPC), will bring interesting insights. The perception has been created that the government is trying to encroach into the judiciary’s space by replacing a judge with a bureaucrat. It is necessary to understand that the CCI is designed to perform a widely different set of functions than was performed by the erstwhile MRTPC. It is expected to be an important tool to regulate, in a healthy proactive manner, the growth of corporates in a complex and growing economy, functioning in an era of rapid capital movements and with large domestic and multinational corporates in the fray, in the background where new technologies emerge continuously at a furious space.

The need is for a savvy regulator, au fait with the latest advances in corporate practices, fully familiar with the use and abuse of financial instruments and company-law provisions, in an era of rapid technology changes. The issues to be tackled are not merely consideration of inter-se interests of, say, the government vs bidders, or disputes between different licensees, or settlement of grievances relating to compensation, etc. The canvas is much larger and in a different dimension. The need is to regulate combines, recommend division of an enterprise as required, and to undertake competition advocacy.

The body needs to take into account the very large interest of the common citizen, who may not be adequately represented, if at all, in a proceeding before the CCI. Its function is not envisaged to be quasi-judicial like its predecessor MRTPC, but to be a body corporate, reaching out for memoranda of understandings with foreign agencies and providing broad directions on issues like determination of market domination, market concentration, elasticity of demand, predatory pricing etc.

In the UK, the chairpersons of the Compensation Commission, and the Office of Fair Trading are both economists. The US Commission combines investigation, prosecution and adjudication. The chairmen of all the above bodies are experts in the field, from different disciplines, with broad-spectrum experience of corporate issues; none of these is a judge. It will be myopic to look at the issue of a major oversight body like the proposed CCI, from the limited perspective that only a judge shall head the same, as if there is a divine right to do so. Of course, there needs to be sufficient safeguards to ensure that only persons with adequate background, experience, knowledge and familiarity with the complexities of management and regulation in the corporate world, with high integrity should man the CCI.

Unfortunately large national issues are seen either as an encroachment on judicial territory or attempts to foist ex-bureaucrats into plum positions; the latter should certainly be avoided with stringent safeguards. The reference to the CCI issue is merely to illustrate the need for a change in the mindset of all the players who see large national issues in narrow petty, partisan terms. I feel the time has come for us to look at over-all reforms in judiciary.

The writer was former Cabinet Secretary and has authored the book ‘Journeys Through Babudom and Netaland: governance in India’.