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India’s Judiciary:INCREASE BUDGETARY SHARE, by Dhurjati Mukherjee,23 March 2011 Print E-mail

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New Delhi, 23 March 2011

India’s Judiciary


By Dhurjati Mukherjee


The recent decision of the Supreme Court quashing the appointment of the Chief Vigilance Commissioner (CVC) has once again proved that the judiciary is playing an active role in its attempt to cleanse the system of corruption and streamlining procedures to uphold the rule of law.


Undoubtedly, in the 2G scam, unearthing of black money and various other cases, the Apex Court has won civil society’s praise and admiration because of its decisions. True, the Prime Minister and other leaders have argued that the Court has over-stepped the limits of judicial power but this has no basis given that it is carrying out exemplary work.


While some may have vested interests in curbing the Supreme Court’s powers, others are oblivious of the systemic mal-functioning and want this to continue. If our Court is functioning as an activist, it is due to the Government’s lack of efficiency in enforcing the rule of law and allowing wanton corruption to infiltrate the system and affect the common people.


According to a recent research, the Supreme Court tackled 69 public interest litigations and 5000 other cases in regular hearings compared to 77 cases of the US Supreme Court and 89 of the UK Supreme Court in 2009. The staggering work load of the Apex Court has been handled effectively and its decisions might have interfered with administrative functioning but they have tried to reform the system.


There can be no denying that the Supreme Court has turned over a new leaf under Chief Justice S.H. Kapadia. This augurs well for an institution whose reputation took a battering during the tenure of his predecessor, K. G. Balakrishnan. The moral edge it has wrested from the Executive is also evident in various actions taken in the 2G scam or the need of the Government to bring back black money stashed in tax heavens by industrialists and also political leaders.


The vigorous manner in which the SC pursued a range of PIL cases in recent months has marked a new phase and is a sharp contrast to the earlier one, rekindling hopes that this is the sole institution that can challenge the high and the mighty.  


Almost every political party has had a brush with the judiciary. One may mention here that there was a time when the neutrality and transparency of the Apex Court was low, especially during the Emergency. At that time four out of five Supreme Court judges agreed with a lower court judgment that the people had no Right to Life as Article 21had been suspended by the proclamation of Emergency.


However, today, the Apex Court is able to look back on that judgment and observe: “There is no doubt that the majority of the Court in the ADM Jabalpur case violated the Fundamental Rights of the people.”


Significantly, the legal system is firmly entrenched and some of the most eminent jurists have Indians. Also, most High Courts too are very active and most of its judgments have been positive, forthright and greatly appreciated by society. This is not all. According to another study, Indian law firms are increasing their presence internationally because of their expertise in various disciplines of law.


Even then, it appears the Government is somewhat reluctant to make the judiciary strong. The budgetary allocation for the judiciary is less than one per cent and this has impeded the setting up of additional courts and infrastructure needed to speed up the justice delivery system.


A Bench headed by Justice GS Singhvi and AK Ganguly recently regretted the inability for speedy justice. “Even in the Supreme Court, a Special Leave Petition takes eight years to reach the final hearing”, the Bench observed. “We all give sermons. We go to the National Judicial Academy and give lectures to judicial officers asking them to speed up disposal of cases. But where is the infrastructure? There are only lectures, sermons, committees and commissions but no solutions”.


Pertinently, there are around 16,000 trial courts in the States fighting to dispose around 2.4 crore pending cases. Though the Prime Minister observed recently (at the 17th Commonwealth Law Conference at Hyderabad) that “Constitutional democracy with an unwavering commitment to the rule of law was the best choice for emerging economies”, there is very little initiative to make the judiciary strong to maintain its neutral stand.  


Clearly, if the necessary infrastructure is not provided the dispensation of justice would be retarded. This in turn would greatly affect the people, specially those belonging to the deprived sections of society.   


Recall, the Parliamentary Standing Committee in its report ‘The Supreme Court (Number of Judges) Amendment Bill 2008’ recommended that the Government should take every measure to reduce pending cases in the Apex Court and other courts as well. Needless to say, justice delayed is justice denied and the impeccable record of the judiciary should not allow this to happen.


The new phase of judicialisation has been forthright in assessing the Executive’s performance and the reliance on court’s for justice has been aptly honoured whereby the judiciary’s intervention has had positive effects. The court has used the force of law to impose deadlines, defined elements of Government’s accountability and asked for explanation for non-compliance. There is no other institution in the country to carry out this work.


True, there may be some friction between the judiciary, legislature and the Executive, but on the other hand, there is no alternative as the courts are the only institution to ask for legislative and Executive accountability. The rise of the importance of the judiciary has greatly unnerved the present bunch of politicians and bureaucrats, most of whom are involved in corrupt practices and are a party to wrongdoings of the Government.


At such a juncture, there is need to uphold the dignity and neutrality of the higher judiciary as it is still respected by citizens regardless of religion, caste and creed,  though there are ample reports of corruption in the lower judiciary. Importantly, there is urgent need for intervention in the lower courts to bring down corruption levels to the extent possible.


Moreover, a problem that needs to be seriously considered is the growing political influence in the judicial system, which is more pronounced at the lower levels. There are instances where political influence has subverted justice and corrupt political leaders have been successful in by-passing the law through power and influence.


Meanwhile, it is heartening to note that the Code of Conduct has been framed for judges of all courts across the country, including High Court judges, to submit details of their assets periodically. If such details are made public and put on the website of the Supreme Court, this would silence critics and repose further confidence in the higher judiciary.


In sum, there is an urgent need to set-up a National Judicial Commission, comprising former judges, senior advocates and social activists, to tackle this problem effectively. The formation of such a Commission would help in deciding all matters pertaining to appointments, transfers and punishments of judicial officers, if and when necessary, without any interference from the Executive. Also, political interference would be greatly reduced. ----- INFA


(Copyright, India News and Feature Alliance)

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