The move to impeach a judge of the Madras High Court for a judgment that he had pronounced is patently wrong, because according to the Constitution, a judge of the High Court may be removed by impeachment only on the ground of proven misbehaviour or incapacity, which can hardly be inferred from a single judgement – even if demonstrably wrong. However, the process of impeachment is such that it drags the name of the judge through mud, and guarantees the end of his judicial career.
Should the present case be taken as a precedent, and vengefulness be taken as the prime requirement, everyday there would be judges in the dock, threatened with impeachment – for some judgement that had annoyed some political party. And the ruling party, with a majority in the Parliament, would have a merry time browbeating judges, to do their bidding. The present controversy, which we will call ‘the Deepathoon controversy,’ arose, because as it often happens in India, two temples, a Muslim graveyard, and a Muslim dargah were all located close to each other. Hearing a PIL, the judge had directed that a lamp should be lit by the temple at a place where it was not being lit earlier.
This judgement led to a law-and-order situation, and an impeachment motion signed by 107 MPs. Also, for the last many months, another judge, of the Allahabad High Court, is facing impeachment on charges of corruption. No judge has ever been impeached by Parliament, so far, and impeachment motions have been few and far between. Thus, the present situation, where two judges are in the dock at the same time shows that all is not well in the higher judiciary. That said, the lot of a superior court judge is a difficult one in India; testing the limits of jurisprudence, political and religious questions, disguised as questions of law, are often agitated in courts.
The judiciary could have been an appropriate referee for such controversies in colonial times, but not when we are a free country. Probably, opposing parties in political and religious disputes should compulsorily solve their disputes by conciliation. For example, if both sides to the Deepathoon controversy, had sat down together, probably an acceptable solution could have been reached. An instance of a political controversy, eroding the credibility of the Supreme Court, is the Governors’ Powers Case; a bench of the Supreme Court decided that Governors were bound to approve bills in a definite timeframe, while in an advisory opinion, rendered soon after, the Supreme Court held that no definite timeline could be prescribed. Probably, the correct course would have been to debate the issue in Parliament, and come out with a proper legislation.
Recently, there have been repeated instances of the Supreme Court frequently reversing its earlier judgements – a trend deprecated judicially by the Supreme Court itself – which signals that there is no finality to the law laid down by the Supreme Court, and thus erodes public confidence in the apex court. Also, recent face-offs between the Supreme Court and some High Courts exposes the schisms in the judicial fraternity. One hopes that the new Chief Justice of India would make the judiciary a cohesive whole again. The situation is much more chaotic in district courts.
Lower courts are often guided more by convenience, and local circumstances, rather than by jurisprudence, because judges of lower courts are a demoralised lot, with uncertain career prospects. They have to satisfy public sentiments, and yet appear to be on the right side of the powerful Executive. Consequently, most judges rely on technicalities, rather than facts to decide cases, and often leave contentious cases undecided. The Civil Procedure Code and the Bharatiya Nagarik Suraksha Sanhita (earlier the Criminal Procedure Code), have a number of provisions like plea bargaining, compromise, trial by summary procedure etc, to aid quick disposal, which are seldom applied by courts. Similarly, the timelines laid down in both Codes for disposal of cases are seldo observed.
To dispense justice quickly and boldly, more than anything else, District Court judges require moral support and reassurance, rather than constant criticism from higher courts. According to the National Judicial Data Grid, 4.76 crore cases are pending in District Courts, 63.63 lakh cases are pending in various High Courts, and more than 91,000 cases, are pending in the Supreme Court. Not surprisingly, most cases drag on till the litigants kick the bucket, or the requested relief becomes meaningless. According to a 2018 strategy paper of Niti Aayog (New India @75), at the present rate of disposal, it would take 324 years to clear the backlog of pending cases, even if no new cases were filed, so an ordinary litigant cannot expect to get justice in his lifetime. A lamentable consequence of such delays is that the process is the punishment – unfortunate undertrials remain incarcerated for years together.
The political executive often takes advantage of judicial delays, by charging inconvenient persons, under stringent provisions of law, and keeping them in jail, for long periods. All Chief Justices have promised to reduce pendency of cases, but pendency has only increased through the years, because divergent interests of the various stakeholders in the judicial delivery system have led to a pathetic situation where cases multiply, but justice is seldom done. The common man, watches in dismay, as the Government and Judiciary slug it out in the open. To sum-up:
a) The common man wants cheap and quick justice;
b) The judiciary wants to preserve its entrenched prestige and privileges, with the assurance that occasional transgressions by its members would be papered over;
c) The Government wants support from the judiciary in furthering its agenda. Seldom expressed in so many words, the ‘committed judiciary’ that the late Indira Gandhi wanted, has been the desire of all governing parties;
d) Lawyers, who are the link between litigants and judges want many disparate things, the bottom line being the continuation of the present process-heavy system which discourages quick justice, and ensures that no litigant can pursue his case without hiring a lawyer.
That all stakeholders have vastly different ethos makes the search for a common meeting point even more difficult. To elucidate, most higher court judges are from the English-speaking elite, and more often than not, from judicial families, while the political executive, abhors both elitism and dynastism. On the other hand, judges consider the average politician corrupt, crass, and uncouth. The public view the judiciary with distrust, probably because the judiciary can be approached only through lawyers, who are the proverbial X factor; a handful rendering yeoman service, both to litigants and the Court, but a significant briefless mass, disrupting judicial proceedings at the drop of a hat, and maligning the fair name of the profession by their unruly behaviour.
The net result is a highly deficient judicial system. Justice Ranjan Gogoi, a former Chief Justice of India, stated in an interview: “If you have to go to court, you will only be washing dirty linen in court and you will not get a verdict. I have no hesitation to say so. You regret it if you go to court.” Presently, laws circumscribing personal choice in matters of food, drink, marriage and religion, enacted by some State legislatures, prescribing long prison sentences for alcohol consumption, cow slaughter and consumption of beef, have brought millions of cases in their wake.
The Chief Justice of Patna High Court had to write to the Chief Minister to point out that stringent prohibition laws had led to a flood of litigation in lower courts that left little time to judges for deciding more important cases. Probably, following the Pre-Legislative Consultation Policy (PLCP) before introducing legislation and assessing the effect of the legislation after a pre-determined period would help in curbing the enactment of contentious laws. Only genuine co-operation between the three branches of Government – the Executive, the Legislature and the Judiciary – can rid Courts of the accumulated mountain of cases and prevent accretion of new ones. The Executive could help by sticking to rules and avoiding actions that test the borders of legality, and the Legislature could simplify laws, so that a common citizen can represent his own case in court. Finally, courts, too, have a solemn duty towards society, as William Howard Taft, a former US President, and Chief Justice had pointed out: “Presidents come and go, but the Supreme Court goes on forever.”
(THE WRITER IS A RETIRED PRINCIPAL CHIEF COMMISSIONER OF INCOME-TAX,)
