Will Bharucha break judicial shackles?

Governments being the largest source of injustice are also the largest litigants. That spawns a whole industry of panels of government lawyers at every level of the courts and tribunals throughout the country. This creates a huge public sector in the legal profession. But the advocates-general were clearly told by Justice Bharucha of the unfortunate tendency in recent years of the state governments to use their office to confer patronage. He concluded,8220;Necessarily therefore the holder of the office feels beholden to the state government and reluctant to give it the advice that it should properly hear. Also, with rapid changes in the government the holders of the office of advocate-general change all too frequently.8221;

The second alternative norm he stipulates is refusal of respect for a mere title, albeit a modern one. He pointed out, thus, that the tendency to confer patronage was even more evident in appointments to the office of government pleaders, government prosecutors and government panel advocates. He concluded with the bitter truth: 8220;More often than not it is not merit that has put an incumbent in office but the fact that he is the nephew of a second cousin of a minister8217;s wife.8221;

From this meritless, politically-created legal profession follow inevitable results. This large body of government advocates do not have the matching skill of those who appear for the private sector where remuneration is far better and payment prompt. Hence thepublic interest gets sacrificed, though that is supposed to be safeguarded, especially in revenue matters, by an effective legal representation of the state and central governments.

At least two Benches of the apex court have tried in vain to reform the central agency whose lawyers represent the central government and several Union Territories, public sector organisations and some state governments. The reform effort ultimately got caught in judicial politics itself. Since then, it has been an impossible task, especially as top-notch government officials responsible for the administration of litigation in the central boards of direct and indirect taxes, the Finance Ministry and the Law Ministry are never called to account. Maybe, as the possible Chief Justice of India in the new millennium, Justice Bharucha can set this right.

The third alternative norm Justice Bharucha stipulates is of rejecting fashionable but thoughtless change. It is fashionable today to talk of procedural reforms and amendments tothe criminal or the civil procedure codes for tackling the problem of arrears. Unerringly, he pointed out that men who used the procedures were the ones who made the procedures good or bad, and for lawyers to blame the procedures was the same as 8220;for bad workmen to blame their tools.8221; Lawyers cause arrears by seeking adjournments, not preparing their cases well and by being busy elsewhere. Judges cause arrears by readily granting adjournments so as not to earn the odium of the Bar. Worse, judges are no longer punctual, do not sit through the day and since their quality has fallen a hearing can go on and on. He concluded that quality on the Bench and the Bar is in a 8220;free fall8221; and that this was an ominous signal. Governments are responsible for arrears by not keeping an adequate ratio of judges to population.

Justice Bharucha has already charted out his preparatory work of reform as the next Chief Justice. He has done this by recognising that his times as a state lawyer in Bombay were different when hecould tell the state government whether its case was fair or not. There was the assured backing of a fearless H.M. Seervai as advocate general. He recognises that today we live in an era where India as a young republic seems to have missed the straight and narrow path, and money seems to have become the only goal of an Indian. Given the fact that he practises what he preaches, a logical input of the judge8217;s reform packet should be transparency in judicial administration itself. The fearless judge has nothing to fear. The judge need not walk alone in his sadness. Correct diagnosis is half the solution. Correct administrative action by the judiciary itself, operating differently from the current norm of helping politicians, is the other half. It is this other half that unites law to social thinking and action. Will Justice Bharucha be the leader of judicial emancipation? Only time will tell.