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Thursday, September 29, 2022

CJI passes judgement on legislative bodies, but first he must look within his own institution

The Chief Justice of India (CJI) N. V. Ramana, in an Independence Day speech, criticized the quality of current-day debates and discussions held in the various legislative bodies in the country (the Lok Sabha, Rajya Sabha, and the various Vidhan Sabhas). In his view, the quality of debates post-independence was far superior to what we see today and he called the post-independence debates ‘wise and constructive’.

Referring to a debate on the Industrial Dispute Act, he said ‘I have seen debates taking place and a CPI-M leader used to discuss elaborately — what are the consequences of making these amendments in the Act and how will it affect the working class? Same way different laws used to be discussed and deliberated. So, the burden on the courts while interpreting or implementing is less. So, we had a clear picture, what they thought; what they wanted to tell us; why they are making such a legislation.’

The poorer quality of debates, he said, led to legislations having gaps and ambiguity rather than clarity and causing courts being burdened with too many litigations. He added that intellectuals and professionals like lawyers are not in the legislative Houses leading to such a situation and asserted that lawyers should actively participate in public life.

He observed that the struggle for freedom had been led by lawyers like Gandhi, Patel, and Nehru who ‘sacrificed a lot’ to get independence for the country, adding ‘If you take into consideration the first members of the Lok Sabha, Rajya Sabha and state Assemblies, they were filled with lawyers. Unfortunately, over a period of time you know what is happening in the Houses, that is legislations, Parliament, Rajya Sabha, or any other Houses.’

In another statement, he commented on the working of the police force. ‘The threat to human rights and bodily integrity is the highest in police stations. Custodial torture and other police atrocities are problems that still prevail in our society. In spite of constitutional declarations and guarantees, the lack of effective legal representation at the police stations is a huge detriment to arrested/detained persons.’

Largely, it is true that the constant ruckus in the Parliament by Opposition parties does not present a very rosy picture about either the working of the Parliament or the way in which many of the legislators conduct themselves. However, if one looks at specifics, some of his assertions may be debatable:

  • Barring instances when the Opposition creates obstacles in the functioning of the Houses of Parliament, can one generalize and say that the quality of debates has deteriorated over the years? The CJI could be right though about some legislations being ambiguous and having loopholes. But without a systematic analysis of all laws passed over the years, it cannot be claimed that ambiguities only exist in recent legislations while laws passed in previous years were fully foolproof.

In fact, some legal experts consider even the original Constitution to be replete with internal contradictions between various Articles leading to ambiguities when interpreting the laws. The internal contradictions in fact even lead to discrimination in terms of Fundamental Rights. For example, some personal laws contradict the right to equality before the law of both genders and of different faiths. Minority-related exceptions made in the laws also contradict equal rights for different faiths. The question remains: If the quality of debates immediately post-independence was so superior, why were these contradictions not rectified in the early post-independence years?

  • Regarding his assertion about the need for lawyers in these Houses to uplift the quality of debates, it is not as if lawyers are completely absent either with the late Arun Jaitley and the late Sushma Swaraj being part of the Parliament for most of the Modi Sarkar 1.0. Similarly, another good lawyer, Ravi Shankar Prasad has been a part of the government as well. The previous government under UPA also had senior lawyers like Kapil Sibal, Manish Tewari, and Abhishek Manu Singhvi in the Parliament but did this lead to many effective legislations passed during the 10 years of UPA rule? In fact, some very good laws such as the Insolvency and Bankruptcy Code, 2016 and the Benami Transactions (Prohibition) Amendment Act, 2016 were passed under the Modi Sarkar.

It is true that immediately post independence, most of the lawyers present in the country were highly idealistic and persons of integrity. Sadly, the picture in recent times is in fact the opposite and lawyers in current times have a negative image and are generally considered to be crooked, dishonest, and corrupt. This of course isn’t true of all lawyers. However, having lawyers in legislative Houses is not in any case a guarantee of the law-making process being carried out with dedication and honesty. We also have some lawyers in the current day who qualify as serial petitioners filing one PIL after another, abusing the system and wasting the higher judiciary’s time. Prashant Bhushan heads the list of this category of lawyers. Celebrity activists like Harsh Mander acting through senior lawyers like Colin Gonsalves, Indira Jaising etc. also manipulate the system.

  • The number of pending cases in our judicial system currently stands at a whopping 4.4 crore. Surely, not all the ‘burden’ of stalled cases and litigations on the judiciary relate to ambiguity and lack of clarity in laws! Since the CJI specifically spoke about being burdened with too many litigations, it must be pointed out how the judicial system has been wont to admitting almost any and every PIL if it comes from the fake liberal side. There may be exceptions to this, but courts do end up spending a lot of time handling PILs many of which end in judicial overreach into executive matters and matters of governance.

Some other PILs are purely frivolous and taxpayer resources are wasted when courts spend time on them. One example is the PIL in support of Rohingya that was filed by Prashant Bhushan. In a previous post, it has been pointed out that Bharat is not a signatory to the 1967 protocol on the status of refugees nor to the 1951 Refugee Convention, so Bharat can deport illegal immigrants without international legal implications, yet Bhartiya courts choose to spend time and effort on dealing with issues pertaining to illegal immigrants and refugees which are matters to be handled by international courts if at all.

Forget adjudicating on new laws passed by the government, but one wonders why the judicial system engages in encroaching upon purely executive matters like Covid management (court’s disastrous intervention in UP Panchayat election forced govt to go ahead with election and led to avoidable loss of life). Even in Rafale and the Judge B H Loya cases, dubious PILs were admitted since Lutyens lawyers were representing the petitioners.

When serial petitioners like Bhushan, Mander etc represented by senior Lutyens lawyers are allowed to get away with filing PILs without being penalized, even when many such petitioners consider themselves to be above the Parliament and above courts as well, it only sets a very poor example of how lawyers should conduct themselves.

  • The CJI praised a CPM MP but should have also noted that the CPM is responsible for the utter destruction of WB’s industry, creating the hartal culture and legitimizing political violence.
  • Regarding the CJI’s observations on the police force, it is true that police reform is a very crucial need but the justice system is also in need of a major overhaul. Bharat’s justice system, to put it mildly, is highly ineffective and inefficient. In reality, it is a failed system with crooks often going scot free and even when justice is rendered, the time taken to deliver it is far too long to make it worthwhile to all concerned.

Since the judiciary sets about trying to play the activist role by advising the elected representatives on executive functions and governance and in the light of the CJI’s comment on functioning of the police force, it would have helped if the judicial system had actually been ‘activist’ enough in some instances which would have provided true solace to suffering citizens. For example, the SC had perfect opportunity to set an example for all police forces by cracking down on WB govt and police for the horrific post-poll pogrom, but instead they dragged their feet and did not even reprimand the WB police and administration.

In an ‘activist’ capacity, another initiative the judiciary could have taken relates to decolonisation and allowing arguments in Bharatiya languages in today’s era of technology and instant interpreters.

And nothing in Bharat today needs to be reformed more urgently than the opaque collegium system through which judges appoint themselves. In no other country, democratic or otherwise, does such a system exist. It truly exemplifies ‘power without accountability.’ Parliamentarians are answerable to the electorate every 5 years, bureaucrats are answerable to ministers, but what about judges? Sadly, it appears that at the moment they consider themselves answerable only to an elite coterie of Lutyens’ lawyers.

To conclude, it would be good if the judicial system looked within and addressed its own deficiencies before it sets out to bring about reform in the functioning of other systems such as the legislative and executive functions of the government or the way police force works.

(Featured Image Source: newsminute.com)

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