New realities demand accountability with freedom

Updated on Oct 28, 2007 04:20 PM IST

Law and divinity are closely related. Religious precepts are laws thought to be enacted by gods. Mahatma Gandhi believed in truth as both his god and his idea of justice rolled into one, writes Vipul Mudgal.

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Hindustan Times | ByVipul Mudgal

Law and divinity are closely related. Religious precepts are laws thought to be enacted by gods. Mahatma Gandhi believed in truth as both his god and his idea of justice rolled into one.

Writer Prem Chand wonderfully sums up this tradition in a short story in which a humble villager transforms into a pious soul or a Panch Parmeshwar after being elected to a jury. The moral of the story justifies ordinary peoples’ extraordinary hopes from their judges.

Seen in this context, the nationwide outrage at allegations of corruption against former Chief Justice of India (CJI), Y K Sabharwal, makes perfect sense. Sabharwal has denied that his verdicts benefited builders who had business partnerships with his sons. Those cynical about the immense powers enjoyed by judges want the Panch Parmeshwar to face Agni Pariksha or baptism of fire, but there is no legal provision for this.

Focus on accountability

Top judges do not have to worry about wealth disproportionate to their known sources of income. The constitutional provision of impeachment is extremely complicated. It requires 100 Lok Sabha or 50 Rajya Sabha MPs to initiate the process that has to be completed with a majority vote in Parliament. No wonder, no judge has ever been impeached. Now a proposed in-house forum, National Judicial Council (NJC), is supposed to tackle charges of corruption, misconduct or sexual harassment against judges but it excludes serving or retired CJIs.

The judges don’t have to come clean by declaring their assets, unlike legislators who are required to do so under the Election Commission norms. Many fear that a fraternal NJC could degenerate into a toothless departmental enquiry, known in government circles as most lenient of official probes. A parliamentary standing committee and many leading jurists, including former CJI, J S Verma, and former Attorney General Soli Sorabji have suggested inclusion of outsiders (i.e., from executive and legislature) in the council but the judges are opposing that. They are also resisting the citizens’ Right to Information to be applied to the NJC.

All is not lost

Not everyone in the judicial circles is opposed to accountability. Jurists K K Venugopal, Justice (retired) Rajendra Sachchar and several regional bar associations are campaigning for transparency in appointments and disciplinary mechanisms. Sensing the mood of the nation, the parliamentary standing committee has also recommended that the executive and legislature should have a say in judicial appointments.

In the last 60 years, the Indian judiciary has protected the citizens’ liberty and the rule of law against heavy odds. American scholars Marc Galanter and Jayanth K Krishnan say that the Indian judiciary’s defence of democracy and protection of human rights have gone largely unappreciated in a “very large, very poor, and very diverse society.”

The judiciary continues to be a keeper of the peoples’ will but it needs to adapt itself to the new realities of a rapidly changing India. From generating employment to creating infrastructure to setting up new businesses, legal reforms are critical for a resurgent economy. India needs to weed out antiquated laws, create a modern infrastructure, and build a system of judicial accountability without compromising the judges’ independence.

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