Sunday, April 05, 2015

010 Independence of Indian Judicial System should be preserved


Photo courtesy http://en.wikipedia.org/wiki/H._L._Dattu .


010 Is a Conference of CMs & High Court Judges at Delhi on 5th April 2015 necessary?
010 Hindi language: kyA 5 April 2015 dinAnk dilli mEn huvA mukhya mantriyOm aur nyAyamUrtiyOm ke sabhA avaSya hai?


In my (ybrao a donkey) humble personal view, I feel that there is no need at all, of this Conference of CMs and Judges in Delhi.


If Government of India wanted to convey its opinions about the functioning of the Indian Judicial System, it could have conveyed in writing, through the Law Ministry to the Supreme Court officially.  An appropriate Bench or a Committee/Collegium of Judges of Supreme Court might have examined the issues raised by the GOI.


Prime Minister and Chief Ministers of States, better not to have a need and opportunity  to pontificate to CJI and judges on how they decide cases.  This is important because after the removal of Collegium System for appointment and elevation of Judges of High Court and Supreme Court, the Government of India has captured a dominant position over the judiciary. 


Though publicised as a dinner in honor of Judges, the meeting ended up in the PM and CMs giving directions to the Judges.  The meeting is nothing but a covert attempt to influence the Judiciary and the Judges.


In future, these dinner meetings may be converted into Review Meetings by PM and CMs, which do not run on EQUALS - TO - EQUALS BASIS, but may run as SUPERIOR - TO - SUBORDINATES basis.


(Those who are familiar with the functioning of Governments in India at different levels, can perceive them as open-house banging of bureaucrats by the politicians in power.  The hammered bureaucrats, depending on their personalities, may swallow the insults, receive them with one ear, and send them out through the other ears.  Nothing concrete will be implemented.  There may be some bureaucrats who implement the instructions of the political bosses ignoring the legalities and justifiabilities of the instructions.)


Hitherto, Indians believe that Indian Judiciary operates independently, at an equal level with the Executive.   Late Ms. Indira Gandhi, PMOI between 1966 and 1984 tried to tamper with this equilibrium.  Some Judges tried to co-operate with her, either because they were timid and compromising, or selfish.


Indians have to learn from history.  They may have to guard themselves against repetition of historic, historical errors.


Executives all over the world, customarily expect that Judiciaries do not intervene or interfere, when the State trods on the rights of its citizens, or when Executive indulges in repetitive injustices.

On the one hand Business Houses, Corporates, Industrial Houses try to influence the Judges by throwing baits of direct and indirect bribes.

On the other hand, the same Business Houses, Corporates, Industrial Houses, through bureaucrats and politicians (Executive) try to influence the Judicial decisions by sending carrots and sticks.

To safeguard against all these possibilities, customarily, Judges were-are-will-be expected to stay aloof from the forces and persons which are capable of, and which have a need to influence their decisions.  They are not expected to attend dinners, parties, clubs, accept felicitations, gifts -howsoever small they may be, and in the process place themselves in a position where knowingly or unknowingly they get carried away over a period of time.


Though Late Jawaharlal Nehru, Late Lal Bahadur Sastry (PMOI 1964-65) were somewhat exceptions(not fully), India did not experience Prime Ministers, Ministers, CMs, MPs, who were truly and ever enthusiastic to share their power with Judiciary.


In this context, it will be in the fitness of things if Judges stay aloof, as their ethical codes need them to, from the influencing forces, right from PM to India Inc.     (Corporate Business Houses of India, India Inc. are also called  Bombay Club).   Their power, though undocumented so far, is immeasurable, and proportionate to the money power they wield.



PROBLEM OF PENDENCY OF CASES in terms of chronology, quantity, quality.

For this problem, there are no shortcuts.  Large number of courts, in proportion to population are to be established. 

Large number of judges, in proportion to population are to be appointed. 

Infrastructure such as Computer systems, Telecommunication systems, Data Mining Systems, are to be created in sufficient quantities and qualities.

Methods of handling trials, appeals, reviews, framing of charges, framing of issues, service of summons, admission of evidence, submission of arguments and counter-arguments, examination of witnesses, have to undergo sweeping changes, WITHOUT DILUTING JUSTICE.

Justice Delivery Systems (Role of Ratio decidendi, Obiter dicta, Writing of judgements, communicating them, publishing them, etc.) have all to undergo substantial changes, WITHOUT DILUTING JUSTICE.

LOK ADALAT and ARBITRATIONS are not substitutes for proper enquiries, trials, appeals, reviews.  Devoid of proper systems and procedures, full of deviations, Lok Adalats and Arbitrations can never serve the cause of Justice or Jurisprudence.


LAST BUT NOT LEAST

Today, Indian Judiciary has no independent organs under its direct control to independent inquiries where the Government Departments (Revenue, Police etc.) fail in their duties, or perform them perfunctorily or with bias).  Judiciary should have its own Police Investigation Wing, for special investigations when seriousness warrants.

Today, Indian Judiciary has no independent organs under its direct control to enforce its judgements.  If the enforcing authorities (such as Revenue, Police) fail to enforce the court decrees, at present, remedy available is Contempt of Court proceedings.  Judiciary should have its own Enforcement Apparatus.


(To continue.  HINDI: sashEsh.)

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