Who will judge the judge? “The Bar,” said Fali S Nariman, then on way to becoming one of India’s pre-eminent jurists, at a valedictory function in honour of Justice V R Krishna Iyer who was retiring from the Supreme Court more than three decades ago.
That may well be the case, but the Bar, or the collective legal entity, can judge a judge only after she/he became one. The question that is exercising the minds of India’s higher judiciary as well as legal and political luminaries at the moment is somewhat different. What they are seeking an answer to is: who will sit in judgment of who is best equipped to be a judge.
Times were when judges, from the district level all the way to the Supreme Court, were considered beyond reproach. You appealed against a lower court verdict only when you felt you had lost the case because of improper legal backing, never because you felt the judge had been compromised.
Not any more! Now a good number of appeals are filed because of serious misgivings on the integrity of judges. (And yes, quite a few get filed because you know you have access to the judge concerned.) Hence the issue of appointing judges, mainly to the higher courts, is being debated nationally in the hope that a solution to this vexing problem affecting the most important estate of democracy can be found.
The issue gained momentum when the Narendra Modi government returned a proposal to appoint well-known lawyer Gopal Subramaniam as a judge of the Supreme Court to the collegium headed by the Chief Justice of India because the Intelligence Bureau had reportedly raised doubts about his integrity.
The retired Supreme Court judge Markandey Katju set the proverbial cat among the pigeons by declaring how he had objected to the appointment of a judge to the Madras High Court more than 10 years ago because the man had allegedly been involved in corrupt practices.
Questions began to be asked why Katju waited so long to make such a damning disclosure about a man who, unfortunately, is not alive today.
Katju not only took on the questioners - in reply to an article by noted Supreme Court lawyer Harish Salve in Indian Today, he wrote to the magazine’s editor seeking an apology from Salve - but came up with more revelations, this time about the shenanigans of judges of the Allahabad High Court. “I have given only two instances of corruption in this post, but I can give several more,” Katju wrote in his blog. The malaise, no doubt, runs deep.
Prime Minister Modi knows that if he is to deliver anywhere near what he had promised in the run-up to the elections, he will have to have the judiciary dispensing justice fairly and fast. By all consensus the present collegium system, which consisted of an all-judge panel, to appoint judges to the higher courts has not only outlived its use but, as the revelations like the ones Katju has made show, has also been found wanting in the integrity department.
A change, therefore, is very necessary. As a first step, Law Minister Ravi Shankar Prasad withdrew the previous government’s bill on the subject which got lapsed. Prasad told the Rajya Sabha earlier this week that he would soon be introducing a new bill in its place.
As with everything Indian, the scale of the problem is stupendous. Though the exact present number is not available, at last count there were as many as 60mn cases pending in the nearly 12,000 courts in the country. The Supreme Court, which is the highest appellate authority in the country, alone has a backlog of almost 55,000 cases. This when the court has 31 judges! There are under-trials who have spent a decade or more in jails awaiting judgment. The saddest part is a good number of them are in jail for no fault of theirs. There is no law yet to compensate - if such compensation is at all possible - these poor souls for the time they spent behind bars.
The funny thing about justice is the inbuilt contradiction with which it is dispensed. On the one hand we say: “Justice delayed is justice denied.” But on the other, there is this: “Justice hurried is justice buried.” The truth, as the good Dr Watson was informed, lies somewhere in between.
Unkindest cut
Reservation, India’s answer to affirmative action, has been a perennial source of jokes among those - and by this I mean the majority of Indians - who, by virtue of their births, do not get to enjoy it. One that has stuck to mind is about the college athletic meet where out of the eight participants in the 100m race, three had the felicity to run just 70m as they belonged to the class that enjoyed reservation.
Although not exactly connected, this story came to mind as one witnessed the agitation by a group of youths in the national capital against the English language test in the civil services preliminary examinations. Not many among the agitators looked like they could pass any exam let alone become future civil servants. But what has surprised academics as well as those who feel for the country in general is the Modi government’s capitulation to a group of hooligans masquerading as students.
Just days after being sworn in, Home Minister Rajnath Singh had let it be known to all where his preferences lay in the matter of languages. The agitation, mainly by students from Uttar Pradesh and Bihar, against the English language test was only waiting to happen as a natural corollary. The day may not be far when the next set of agitators demands that English be taken altogether out of all civil services exams.
A decade from now we could have Indian diplomats speaking only in Hindi. Imagine the Indian prime minister trying to converse with the president of the United States through his favourite interpreter who, by a curious coincidence, could only speak Hindi!
Over the years reservation killed merit. Parochialism is making sure it is buried once and for all. In its brief reign till date, this is perhaps the unkindest cut of the Modi-led government.