WE, THE BEREFT
Fair play is as good
The new CJI has cemented oligarchy in the courts with his hands-off call on assets
TSI | Issue Dated: March 4, 2007
People’s Union for Civil Liberties
A long time ago, when Justice Venkatachaliah was the Chief Justice of India (CJI), a senior judge of the Supreme Court compared the court to The Vatican and the CJI to the Pope. A few years thereafter, the court wanted financial autonomy so that dependence on the government is reduced. In that context, the present CJI’s (K.G. Balakrishnan) statement does not come as a surprise. The CJI says no self-respecting judge would like a stipulation that he or she should declare his or her assets or permit any layperson to probe the conduct of the judiciary. By this he also implies that self-respect attaches itself to the judge, not to the person before he became a judge. The claim for exclusivity, insulating oneself from others in the community, is wrongly identified with independence. I have serious objection to the claim of such exclusivity.
The Constitution created three institutions, all in the democratic mould. The Parliament and legislatures are elected and therefore accountable to people, the Executive formed out of the party or parties in coalition are elected and accountable to people at five-year intervals, or even shorter intervals. By resort to a vote of confidence, the ruling party can be voted out. But the judiciary, one of the wings of governance, with jurisdiction to supervise governance within limited parameters, is neither elected nor selected but persons appointed to the judges’ office until the age of superannuation.
The Constituent Assembly simply adopted the colonial practice. There was no restructuring of courts in terms of the Constitution. The judges are appointed from out of a huge body of advocates and that body has not even a consultative status. With the autonomy it is laying claim to, it has become an oligarchy. The judiciary, from the late 60s, has secured vast powers to itself by extending its power of judicial review into Acts within Parliament; it has reserved its authority to review impeachment proceedings against judges also. Exercise of jurisdiction is the name of exercise of power by the judiciary. Wrongful exercise of jurisdiction may at best be characterised as a wrong judgement, for, a judge has authority to decide wrongly or rightly. Wrong exercise of power by the Executive is called abuse of power. Judges come from ordinary people and their attitudes and world vision, if they have any, are determined by their education and upbringing, their professional life and their personal experiences. Their attitudes, and the prejudices they have, enter their decision making processes. They are all too human and susceptible to the follies and foibles they imbibe from the society they come from and to exempt them, from the elementary discipline necessary for such constitutional and high positions, would not assist the growth of the institution.
A long time ago, a much respected senior appellate lawyer was appointed as a judge of the Madras High Court. In a few years, he became the Chief Justice of the Madras High Court. His younger brother, without knowing that his elder brother had declared his age at the time of elevation much less than his, distributed his sashtipoorthy (completing 60 years) celebration cards to colleagues and some members of the Bar. This led to a controversy and Justice Gajendragadkar from the Supreme Court was sent to enquire into the allegations and, if true, to persuade the erring Chief Justice to resign or face impeachment. Persons called to the Bench were asked to declare their age because of the presumption that no self-respecting person appointed to such a high position would give a false declaration. There are instances where age was reduced by launching a make-believe litigation and the decree was ready, if called to the Bench, as proof of age.
Apart from all this, there has been constant wailing of more than one retiring CJI that the judiciary has become corrupt. These should be the alert signals to constitutional institutions. Under these conditions, to exempt judges on the ground of self-respect appears to be not a very informed approach. The CJI’s rejecting the idea of association of a layperson is surprising. The reign of the oligarchy is complete with this attitude. Many of the laypersons are affected by the courts on various socio-economic issues and it is for the common people that these institutions are structured. ‘We the people’ did not create the Constitution for being ruled by a new order of rigid oligarchcal structures dispensing justice in a fight between power and the people.