On April 24, addressing the inaugural session of a joint conference of Chief Ministers and Chief Justices in New Delhi, CJI TS Thakur broke into tears while Prime Minister Modi kept enjoying the act as if he were an extraordinarily omnipotent political executive. Though Justice Thakur had the minimum guts for accusing the Government of inaction in increasing the number of judges and providing appropriate infrastructure to bring relief to crores of suffering litigants including countless undertrials languishing in jails, his act has upset the legal community. The law-ignorant media too carried the story as if a chained Messiah was so helpless that he was forced to push tears down the cheeks to move the routinely callous hearts of populist political leaders.
Increasing the number of judges is never the only remedy. Unfit judges have soared in number having no basic skills to understand the spirit of law for disposing cases fast. Mostly, High Court judges, imagining they are lords, sit over cases by passing interim orders, rulings and observations without passing final judgments. There is no stricture served on them for pending cases like they themselves do to demote or dismiss trial court judges who slug like mad with fear and against odds. It’s the trial courts which dispose crores of cases out of the pending fifty million or so every year to keep the disposal number just tolerable.
Further, the judicial conduct of High Courts cannot be criticised publicly, only appealed against at the Supreme Court. Expert researchers keep constantly worrying about the various reasons: incompetent judges, rampant malpractices, decreasing quality of legal education, unethical lawyers are some of the most important reasons that are bogging down the most important and powerful pillar of our democracy. Justice Chandru Krishnaswami, an eminent former judge says, “Refusal to switch over to technology, appointment of incompetent judges and decreasing standard of legal education are the major reasons for backlog of cases.” Aparna Chandra, Research Director, Centre for Constitutional law, Policy and Governance, strongly believes that the acute problem is due to judiciary’s reluctance to open itself up for a review of its functioning. Mere increase in judicial resources and infrastructure will not solve the problem. Judges have to hone their basic skills first to dispose of cases fast. Further, the Contempt of Courts Act, 1971 has been used to put a spanner in the attempts to question the judiciary. However, due to lack of transparency in the functioning of the system, the absence of a culture of openness and willingness to engage with civil society, academics and other stakeholders, and lack of quality statistics on functioning, the judiciary escapes accountability. Justice Chandra says that in the higher courts, there is no accountability regarding disposal of matters, but no bar on admission of cases mainly because some want to please the Bar. Condemning rampant corruption including favouritism in courts, the Judge says the political class alone cannot be blamed for the problem. “Unless accountability is ensured by appointing competent and experienced judges, the problem of pendency cases will never be solved.”
Even if judges were angels and the political executive horrendously evil, the judiciary is expected to haul the latter with such a jolt-causing jerk, that the system gets reformed overnight. The Constitution has bestowed the highest power on the judiciary to caution, warn and then punish the executive with strong orders to put functionaries and facilities in place without measurable delay. The judiciary is the sole keeper of conscience and protector of the Constitution. Even in the recent past, judges have rendered convicted politicians disqualified from election frays.
Justice Thakur could have merrily cautioned the callous executive to act fast in providing requirements because they keep the public treasure chest as if it were private property.
The unforgettable Justice Hans Raj Khanna had the moral courage to stand against the all-powerful Prime Minister Indira Gandhi during the Emergency. His moral principles inspired him to sacrifice the opportunity of becoming the Chief Justice of India only to preserve democracy and free speech. legendary Justice Khanna now lives in history books as a crusader of civil liberties.
Judges do not depend on their Chief Justice of India for courage to serve without “fear or favour”; they derive it from the Constitution, Justice Kurian Joseph corrected a 92-year-old litigant in the Supreme Court very recently. Justice Joseph, the lead puisne judge on Chief Justice RM lodha’s Bench, put matters into perspective for the litigant in the presence of the Chief Justice and Justice Rohinton Nariman, the third judge on the Bench. He made these remarks to the litigant NS Hoon, who repeatedly insisted that only CJI lodha, and no other judge, has the “courage” to hear his petition, which lists several allegations against the judges of the Supreme Court and High Courts.
Mr Hoon had threatened to go on a public agitation unless his case was only heard by CJI lodha when the CJI had already informed him that his cases were listed today before another Bench. To this, the litigant said no other judge has the courage to hear his case and Justice lodha was his last hope. The CJI sternly asked him not to “go beyond the limit” and threatened drastic steps, but Mr Hoon would just not give in. “Only you have the courage to do something. No other judge has shown any courage to hear my matter,” he insisted.
It was here Justice Joseph intervened. “It is the Constitution of India which gives a judge courage to perform without fear or favour and not the Chief Justice of India sitting by my side,” he said. “Every judge takes the oath under the Constitution to act without fear and favour. The Chief Justice of India has taken the same oath as any one of us,” Justice Joseph remarked.
So, Justice Thakur, visibly a very soft-hearted angel of a human being should demonstrate some play of the head rather than the heart. The heart can go wrong on fronts of logic and reasoning that determine ‘wrongs’ and ‘rights’. It is enormously influenced by personal likes and dislikes. The head goes by principles of absolute truth that leads to reasoning which is what persuades a judge to interpret law in the right perspective. Two plus two will always be equal to four for a skilled job. For a faint-hearted judge, the arithmetic could work up to five, eleven or any other weird number because the heart has taken over the head. Justice Thakur must ponder over too well on the apex court’s historic ruling against the Judicial Appointment Commission when virtually the body was in place, despite the fact that the Indian Collegium is uniquely designed to keep the supremacy of the judiciary intact. Nowhere in the world of democracy has the judiciary ever demonstrated such courage in demolishing the design of a most popularly elected executive.
Justice Thakur, the saintly human being he is, probably imagined his tears would move political honchos a great deal. He was grossly wrong. It made the politicians immensely happy to behave like patrons, which is plain sin. All that benefitted is only one make-believe pillar, the media, which sensationalise the tear drama to make easy revenue and please the corporate masters.
There is still time for Justice Thakur to warn the populist executive by ruling, “Provide all that we need without delay, or we pass order.”
(The writer is a core member of Transparency International, Odisha)