Law in the dock
There is an urgent need to appoint a full-time National Judicial Commission with exclusive power over appointments and disciplinary action against higher judiciary. The concept of ‘proved misbehaviour’ needs to be considerably widened, writes Hardev Singh Mattewal.india Updated: Jun 10, 2009 23:33 IST
Shocking, outrageous, unbelievable. This will be the first reaction of anybody who reads the Punjab Vigilance Bureau reports (HT, June 4), based on audio-video evidence, which reveal a sad story of fixing cases in the Punjab and Haryana High Court, selection of subordinate judges and procuring favourable orders — all for a consideration.
But as the implications of it all sink in — of divine judicial function being thus corrupted by most base considerations, of people’s trust betrayed, of the Constitution’s vision flouted, of other judicial scandals that have been witnessed in the recent past — the only answer is that the time for action has arrived. No more pondering, pious wishes or hopes will do — concrete , immediate and decisive action is the need of the hour. Any delay will be suicidal, the damage irreversible.
Francis Bacon, in his essay ‘On Judicature’, emphasised that “ the place of justice is a hallowed place; and therefore not only the Bench, but the foot pace and precincts and purpose thereof ought to be preserved without scandal and corruption.”
An editorial in a US newspaper, calling for judges to be sentenced to jail, stated : “We cannot stress enough how important blind justice is to our society. If a judge can be bought for a few thousand dollars in car repairs and a membership to a health club, then everybody’s rights are in jeopardy because the only thing protecting our rights is our judiciary.”
This public response shows both the harm corruption does to the judiciary’s image and the need for judicial accountability. There is much that needs immediate attention. The failure of the system of impeachment has been established in the case of Justice Ramaswamy. The in-house mechanism put in place has yet to deliver the desired results. No action was initiated against the former Chief Justice of India, Justice Y.K. Sabharwal, despite the Central Vigilance Commission forwarding the complaints against him to the Law Ministry for ‘necessary action’. And in the Punjab case, as revealed in the HT story, no action has been taken, despite the three-member Supreme Court collegium having recommended the transfer of one of the judges named. Also, no guidance has been given to the Vigilance Bureau to proceed further, despite criminal offences plainly disclosed.
There’s no transparency in the system of appointments which, in the words of Justice P.B. Sawant (retd.) ‘works to the division of spoils among senior judges’. In the words of Justice Krishna Iyer: “The very process of selection and appointment of judges has been at times found obscurantist, arbitrary and unsatisfactory and vitiated by nepotism and favouritism. When the power to appoint was with the Executive, there was much criticism of quality and integrity of the choice. When the collegium of judges took over the power to appoint judges on the ground of independence of judiciary, their management of the function of selection was so dilatory, deficient in competence, lacking in principles and flawsome, that one wonders whether the judiciary with no training in selection and no code of directions, should be entrusted with this power at all.”
There is an urgent need to appoint a full-time National Judicial Commission with exclusive power over appointments and disciplinary action against higher judiciary. The concept of ‘proved misbehaviour’ needs to be considerably widened. It may not be limited to bribery, misappropriation or other serious crimes, but could include relatively lesser lapses, like regularly failing to observe punctuality etc. There is also a need to understand that there is no justification for maintaining secrecy about the assets of judges any more than that of other public and Constitutional functionaries.
Hardev Singh Mattewal is Advocate General of Punjab.