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Judiciary: a reform agenda — II

By V.R. Krishna Iyer

The law of contempt needs drastic re-definition with more safe space for free speech sans malice or mischief.

TRANSPARENCY AND accountability are absolutely obligatory so far as judges are concerned. Public criticism is a `free speech' right, fundamental under Article 19. And so, hypersensitive contempt proceedings are too peevish and unbecoming for judges. So, I urge, as a matter of reform, a specific statutory provision with constitutional complexion, making transparency, accountability and amenability to public criticism as fundamental in good judicial governance.

The judicature, if it is not to stultify the justice delivery system, must reshape the justicing processes in such manner as to deliver prompt and complete relief in any cause or matter pending before it. The great obstruction between law and justice, the wall of separation between the laity and the complicated legality may be found in the exotic procedural law, Civil and Criminal (originating in Colonial Law Commissions). Macaulay and Sir James Fitz Stephen (who drafted the Evidence Act) have drawn an iron curtain between the vast masses who seek judicial relief and the court system with its functional colonialism. We have made amendments to the codes and the law of evidence peripherally, but the alien soul survives after death. In my humble submission, there is a good case for replacement of the laws by a simple, streamlined, commonsense statute. The drafting procedure is artificial and obscure. The cumbersome and technical rules of Westminster vintage are an anathema and litigative paradise.

The promulgation of a simplified procedural legislation leaving out archaic, enigmatic expressions and empowering courts with commonsense jurisdiction and plain procedure will go a long way in speeding up trials and appeals and investing early finality to litigation by cutting down the number of appeals, reviews and revisions, the besetting sin of the existing system. Conciliation, free legal services, commissions and inspections, discovery and interrogatories — these and other preliminary procedures, if made a Bar praxis, will provide remedial radicalism and save judicial time. Affirmative action, surgical approach to disputes with innovative genius, will reduce the opportunities for perjury, afterthought, and unveracity in court. Less paper work, more technology, easy facility for records, copies, and more natural court atmosphere; rather than as a strange institution with odd diction and inhibitive apparel which transform the tribunal into a native curia. The reform of the court and its processes is a high priority on the agenda of the state. Indeed, even the judicial dress and form of address may well be given a swadeshi touch. All this is not a tall order but a simple task, given a spirit of democratic dynamism and willingness to be Indian.

Law, like any other social science, rapidly changes, even as technology, in its revolutionary stride, shakes up the world. Continuing education, to cope with the new dimensions and dialectics of social change, is an urgent desideratum if the rule of law is to run close to the rule of life. Colleges for judges, research and development in jurisprudence and innovative experiments promotive of Constitutional values are therefore a creatively operational requirement. Colleges for judges, with R&D departments, not the idle waste of brick and mortar as in Bhopal, is on the agenda of reform — prescribing for judges a course annually to update and activate obsolete, precedent-prone judicial minds.

Any progressive institution like the Judiciary must plan its advance. The need for more judges, new technology, staff increase, additional buildings, new courts, patterns of fee collection, anti-corruption exercises and a variety of versatile changes in the system justify a wing of the Planning Commission devoted to judicial planning, with a judge or more to be members of judicial affairs within the Commission. The Indian Law Institute may aptly organise a judicial R&D division presided over by a judge.

Finally, I reach a matter of great moment — a National Judicial Commission which may be versatile in functions, multi-purpose in performance and meaningfully plural in composition. The judiciary is not the "least dangerous branch" of Government, sans purse, sans sword, as is often assumed, but can be the most despotic, unaccountably empowered and unreviewably authoritarian.

It is desirable to provide for a socially and politically purposeful Annual Report of the Court in each State, with highlights of democratic, humanist gains, criminal pathological and corrupt trends, as screened by the judicial process from the trial court to the High Court referring to law's delays including judicial insouciance and official indolence. This Report must be before the Legislative Houses and the public, to be "washed in acid" (as the great Justice Holmes put it).

Appointments of judges, transfers, censures and elevations and disciplinary oversight of the higher judiciary must be vested in a high-powered body with sensitive regard to the independence of the Judiciary and the integrity of the instrumentality.

The Nine-Judge Bench (of the Supreme Court) in a mighty seizure of power (5 to 4 divided court) wrested authority to appoint or transfer judges (contrary to the explicit assertion of Babasaheb Ambedkar in the Constituent Assembly) from the top Executive to themselves by a stroke of adjudicatory self-enthronement. And, in practice, on filling vacancies, the judges disagreed inter se and the alleged remedy of good judges being promptly picked up aggravated the malady of favouritism, arbitrariness, dilatoriness and injustice to women and Scheduled Castes, Scheduled Tribes and like communities. Instead of the Ministers, judges' patronised. The system needs overhaul and democratisation.

If wars cannot be left to generals alone, judicial administration cannot be left to the `robed brethren' alone. A superlatively dignified Judicial Commission, with the Chief Justice of India presiding, is a must.

Constitutions like those of Nepal and South Africa contain provisions for Judicial Commissions. Almost all the States of the U.S. provide for commissions for investigating the conduct of judges at all levels.

The composition of the proposed Indian Commission is a matter for pragmatic consideration. The Law Minister and the Home Minister have to be there. A few senior judges of the Supreme Court and of the High Courts may usefully be members, the Bar Councils of India may be represented and, perhaps, high academics from the law universities may be a valuable addition. A couple of outstanding statesmen, not involved in the political polemics of the country, may bring in a fresh approach in the selection process.

The Commission may prepare a panel for the High Courts as well as the Supreme Court and release the names for public response. A broad-spectrum search from among lawyers and even professors, with special stress on women and backward sections, may have to be made without confining to the upper income groups and socialites at the bar. The habit of choosing the judges of the Supreme Court only from among Chief Justices is not the wisest course. Bright young judges can be elevated and may prove to be `brethren' of distinction.

Critical appraisal of the Judiciary and punitive in camera inquiries in case of misconduct are desirable. The courts are not beyond responsible rebuke if they fail to maintain standards.

Indian judges do maintain a reasonable standard of conduct and competence. Some rotten apples do not condemn the orchard. All in all, they are a good lot and do command the country's confidence. American judges of the highest court are terribly criticised, but the court still is held in high esteem. The law of contempt needs drastic re-definition with more safe space for free speech sans malice or mischief.

(Concluded)

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