Judge, judge thyself

Every controversy involving the judiciary could and should have been settled within it, long before it spilled out into the media

I remember writing in this column six months ago that the Chinese hieroglyphic for ‘crisis’ may also be interpreted as ‘opportunity’. Would it be right to say that ‘resignation’ too could be read as opportunity?

In some circles, Ram Jethmalani’s departure from the Union Cabinet is being interpreted as a victory for the judiciary. It is nothing of the kind. I do not for a moment believe that there was any serious danger of the two wings of the state coming to loggerheads, and any possibility was nipped in the bud by the Prime Minister himself making it clear that harmony would prevail. But, now that the executive has done its part, I think it is time the judiciary too undertook to clean its own house.

Let us face it, the judiciary has its fair share of warts. It is not so very long ago that the Lok Sabha debated the impeachment of a Justice of the Supreme Court. Speaking for myself, however, I would prefer it if the judiciary healed itself without any need for calling in surgeons from Parliament. And this is the nub of the dilemma: there doesn’t seem to be any particular hurry in removing the warts. I would be delighted if I am wrong, but that is the impression one gets.

Five years ago, in the last months of the Narasimha Rao regime, the judiciary was popularly seen as the last hope of the Indian state. Hasn’t some of that lustre been lost today? And if so, shouldn’t the officers of the court take their fair share of the responsibility?

There have been some cases that raised eyebrows as, for instance, when the Supreme Court decided a divorce case with the powers it obtains from Article 142 of the Constitution. This is the provision that confers the apex court with the ultimate authority to rule on any issue — as, for instance, it did in the Bhopal gas tragedy case; using it to settle a divorce is akin to using a bulldozer to crack a peanut.

In that instance, there was no question that the Supreme Court was well within its rights. Other controversies are harder to lay to rest — as for instance the half-a-dozen or so cases when questions arose about the dates of birth of high court judges. These are, or should be, recorded facts, not matter for disputation just before retirement.

Arguments about dates of birth aside, what really sets tongues wagging is the unusual (to put it mildly) manner in which some judges deal with the cases before them. At times, the tangent they take can be quite breath-taking; I shall never forget what happened when one Justice of the Delhi High Court was hearing an interlocutory on the Bofors case — somehow or the other it veered off into a debate on the constitutionality of the Central Bureau of Investigation!
And, of course, there have been disturbing reports on matters such as the astounding royalties received by some judges or by the alleged special treatment received by their relatives. You might think that none of the above cases has anything to do with Ram Jethmalani’s allegations. Fair enough, but consider this: in every case, including the current drama about the former Union Law Minister, all the controversy was entirely unnecessary. Each instance could have been, and should have been, settled by the judiciary itself long before it spilled out into the media.

My personal opinion is that Ram Jethmalani shouldn’t have raised questions about the Chief Justice and his family in the manner which he did. There is nothing to link Mala Anand’s success in the court with the fact that her husband is the Chief Justice of India. The episode does, however, raise some questions.

First of all, how many civil cases are settled by the Indian judicial system within just five years? We are, after all, the nation with the dubious distinction of making it to the Guinness Book of World Records as the place where the longest litigation in history took place. So five years to settle a case is quite outstanding. The fact that Mala Anand’s husband was on the Supreme Court from the beginning of the case to its successful conclusion may have raised a few eyebrows, but there is no evidence whatsoever of impropriety.

If you ask me, the only real scandal in the Indian judicial system that worries most people is the speed at which litigation proceeds. I remember Americans grumbling that the trial of O.J. Simpson took far too long though it took less than 18 months from his arrest to the jury’s verdict. Had this been held in India, Simpson’s case might not have appeared on the docket even today!

Obviously, you can’t blame the judiciary alone for all the delays in the system. But I do hope that they themselves make serious proposals for reform, and present them to India at large. The alternative, unfortunately, is that popular discontent will lead the executive wing to make hasty changes. In any case, as a matter of principle, I hold that it is up to the judiciary to regulate itself without interference. The Americans refer to the process as “peer pressure”, whereby judges operate under the constant scrutiny of their brethren on the Bench.

I do not say that this self-regulation would have made it possible to avoid some of the darker episodes in the history of the Indian judiciary such as the abject surrender during the Emergency. Luckily, we no longer have to suffer the overbearing executive of Indira Gandhi’s day. But the responsibility of the judicial wing increases when the executive makes it clear that it is adopting a hands-off policy. Judicial reform then becomes the obligation of the judges themselves, and of the Supreme Court above all.

Seen in that light, Ram Jethmalani just might have done his colleagues of the Bench and the Bar a favour. People might not have been terribly concerned about the finer points of the judicial system or the stress under which judges must perform their duty. Thanks to Jethmalani, there is at least the beginning of a public debate, and it is up to the judiciary to seize the opportunity and make some much-needed improvements.

Judges are held to be infallible because they are, literally, the final court of appeal. But the reverse isn’t true — they are not final because they are infallible.

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