Archive for the ‘Judiciary’ Category

Is judiciary independent enough?

January 19, 2009

Even though the Constitution of India does not accept strict separation of powers, it provides for an independent judiciary with extensive jurisdiction over the acts of the legislature and the executive. This can be very well understood without explanation that independent judiciary is the most essential attribute of rule of law and is indispensable to sustain democracy. We all know that independence and integrity of the judiciary in a democratic system of government is of the highest importance and interest not only to the judges but also to the people at large who seek judicial redress against perceived legal injury or executive excess. Without independence, law just can’t happen.

We have been repeatedly told in our schools, colleges, in newspapers, that judiciary is independent in India. However, as the child matures into adult, this realization happens that they all are crap. How many politicians have been prosecuted impartially, tell me! For normal people, ok judiciary might work but what about the affluent people. It took a hell lot of media attention to reopen the Jessica lal murder case and similar cases. This is just the tip of iceberg; everyone knows the status of cases in India and Sunny Deol has very well enacted the frustration of a common Indian in the award winning movie.

Take a living example of Gujarat riots; I’m not sure if how many accused have been prosecuted and punished till date. I can recall one case of Bilkis Bano. Even after the unfortunate tragedy with her, she wasn’t spared for even a single second. It is been told that Bilkis had to change her house 300 times due to fear of ongoing Gujarat Government. With due credit to Narendra Modi for his development-oriented policies, but should he be allowed to escape from this? Legislature didn’t have answer as they have chosen him again and again; Media didn’t have an answer because they have lost their credibility on the communal issues; Executives didn’t have an answer as they were sort-of part of all this and I’m saying this because if something has happened then the Executive shares equal responsibility because they have resources, they have skill-set to control and curb these kind of incidents. However, everyone failed in this case. So there was only one estate left – Judiciary. Hence, everyone was looking up to them but alas, the results were not much encouraging there too.

It’s true that there have been at least something done at their part but to mind, it happened only when the prosecution was shifted to some other place- Mumbai in this instance. A special court in Mumbai convicted 12 persons, including a police official, in the Bilkis Bano gang rape case, culminating a trial that was transferred out of Gujarat in the wake of intimidation of witnesses. Seven persons were acquitted by the court due to lack of evidence while one died during the course of the trial.

However, I can’t get as why so many cases are still pending; why these kinds of things with national importance and much bigger repercussions are not solved out at priority basis; and more important thing, why can’t we ensure an independent functioning of judiciary! One more example is the debate on judicial appointments based on the system of collegiums (panel of judges) which got louder during the last year with the Law Minister Sh. H R Bhardwaj favoring primacy of the CJI in such matters but former CJIs and other experts putting their weight behind the existing system. However, the government, in Parliament, maintained that there was no proposal to change the present system of appointment of judges in the higher judiciary which is guided by the apex court’s interpretation of the Constitution in the Advocates-on-Record vs Union of India matter.

There were signs of a possible confrontation between the judiciary and the government over a proposal to elevate three High Court Chief Justices to Supreme Court as the government referred back the proposal to the CJI for a re-look. The CJI, however, stuck to his ground and resent the proposal for elevation of HC Chief Justices H L Dattu, A K Ganguly and R M Lodha to the government for forwarding them to the President for appointment. The three were later appointed to the Supreme Court.

The entire episode is not new to India; there have been enormous number of such tussles. It might be said that these tussles are bound to happen when the conflict-of-interests come in the picture but my question is why there is a conflict-of-interest when the only interest behind all this exercise should be- Fair, Natural and Impartial Justice.