Despite
these distortions, most Indians tend to see judiciary as
a knight in shining armour fighting for our liberty in the
face of executive tyranny and legislative failure. In the
first two decades after independence, most Indians believed
that politicians, most of whom were freedom-fighters, could
do no wrong. By late 60's the disillusionment with our political
'heroes' was evident as they proved to be men and women
of clay. For the next two decades, the middle classes and
media trusted the bureaucracy. If there was a problem, the
IAS provided the solution; or so they thought! By mid 80's,
the inadequacies, corruption and self-serving nature of
bureaucracy were self-evident. Now it is the turn of the
judiciary to be seen as the crusading arm of state, protecting
the citizen and upholding liberty.
But
a series of events in recent years rudely awakened us out
of this complacency. The failure of Justice Ramaswamy's
impeachment proceedings in Parliament on partisan and extra-judicial
considerations, for all practical purposes, proved that
errant judges cannot be removed. And then in a perverse
interpretation the Supreme Court effectively held that in
matters of judicial appointments, the opinion of Chief Justice
is more or less final and binding. The judiciary appoints
itself, and cannot be removed by anyone. This self-perpetuation
and unaccountability created a Mullah Raj! Such a state
of affairs is clearly unacceptable in a democracy. The consequences
are predictable. A string of scandals - alleged involvement
of judges in corruption in public service commission in
Punjab, Shamit Mukherjee's complicity in the DDA scam, and
brow beating of journalists who wrote about the Karnataka
scandal - exposed and embarrassed the judiciary as never
before. The contempt powers invested in judiciary, making
the judge complainant, prosecutor and judge, further undermined
notions of accountability.
Clearly,
we need to restore the balance between executive, legislative
and judiciary. The flaws of a democracy can be corrected
by more and better democracy, but not by weakening democracy.
Elected governments alone can be trusted with decision making
because they represent the will of the people. The courts
and constitutional functionaries are vital checks against
abuse of authority, but cannot supplant elected governments
and legislatures.
Three
steps are needed to enforce judicial accountability. First,
a NJC must be created as an independent body to appoint
judges. The Venkatachaliah Commission recommended a five
member committee, with three senior most judges, Law Minister
and one person nominated by the President in consultation
with Chief Justice. The government's proposal is very similar,
except the fifth member is a nominee of the Prime Minister.
The committee on judicial accountability, a body of independent
jurists, suggested a NJC with five retired judges - a member
each nominated by the Supreme Court, High Courts, government,
opposition and Bar Council.
In
a democracy, we cannot completely delink the NJC from the
political process. Public interest may be best served if
the government has two nominees, the opposition one, and
the judiciary two. Such a collective body must function
independently and its decision must be final. Such a committee
must notify the names for consideration and hold public
hearings, so that known corrupt or incompetent persons cannot
be nominated to high judicial office through secret deals.
There are far too many undesirable appointees already who
do no credit to our constitutional offices.
Second,
the NJC must also be empowered to remove a judge after due
enquiry by a committee of peers. Given the failure to remove
a single judge under articles 124 and 217, we need a simpler,
transparent and effective mechanism to remove errant judges,
but with adequate safeguards.
Finally,
contempt powers of judges are anachronistic in this day
and age. That even truth is no defence in contempt proceedings
is a mockery of justice and fairness. In fact, the ordinary
law of civil or criminal defamation is adequate to deal
with any transgressions. Only weak institutions need crutches
like contempt powers. Our judiciary is strong enough to
preserve its dignity and protect its independence without
draconian powers.
***