Let me make it absolutely clear, I am proud to address a judge with respect, reverence and utmost humility, because he or she represents the will of the people which mandates justice to those who deserve it. As a Lawyer and an officer of the court, I am happy to bow down to this altruistic and noble school of thought.
Yet it is the very same common men and women, who have to deal with delayed justice, corruption and a system which according to our Chief Justice himself, has collapsed. How then can we expect the people to respect the law and the judiciary? Make no mistake, our judiciary has produced some of the most eminent jurists the world has seen and will see and it has delivered on so many occasions to the expectations of the common man
Yet, can we deny the scope for improving this system and make it more process efficient and people independent?
The Collegium, as a concept, is not entirely misplaced. The history of this country reveals that judicial activism and sometimes, even judicial overreach, was a necessity perceived in the face of arbitrariness and improper exercise of power. One may disagree with the cancellation of 2G spectrum licenses or the coal allocations on the grounds of impracticality and interference into administrative action.
But the existence of impropriety in the executive actions around these cases is beyond dispute. Such being the case, one can see why there was so much enthusiasm and widespread political consensus leading to the conception of the National Judicial Appointments Commission. After all, no one else could rap the knuckles of mischief makers, the way the Judiciary has done. Therefore, one would be tempted to retain the collegium system as it is.
However, the judiciary is not beyond scrutiny here. The system is overworked and therefore less patient to go by the quality of the argument and is more inclined to go by face value of the counsel.
While I profoundly admire and respect many of the Designated Senior Counsels for their legal acumen, experience and simply the way they conduct themselves and hope to one day practise law the way some of them do, why is it that people feel engaging them will ensure better chances of a fair hearing, as opposed to the merits of the case itself, is a question we must introspect upon.
And then, what about those who cannot afford to engage Advocates of such reputation and stature? When mistakes are made, rather than being admonished and reprimanded objectively, which is both necessary and required, the younger members of the Bar and those lesser known, are often faced with public humiliation with an audience full of people ready to laugh and abet the humiliation.
Many times, we are ecstatic simply to find a Judge willing to allow us to make an argument and pass orders in accordance with law and evidence, because that is a luxury
This is the other side of the story about the law graduate who took the plush corporate job instead of litigation. Yet, we are quick to fault the attitudes of the law graduate instead of making an impartial and fair assessment of the factors that led to this trend in the first place.
In so far as the appointment, transfer and elevation of judges are concerned, the process is neither transparent nor democratic. There is little if not, no say, for civil society to intervene in the appointment of judges, a process we become painfully aware of when we hear of corruption and impropriety among judges. When the post of a judge is a public office, the least one should expect is for a way where civilsociety and relevant stakeholders are taken into confidence and provided with a mechanism to address grievances, during the process of appointment and subsequent functioning.
However, when the threat of contempt looms large on those who wish to legitimately and reasonably criticise or openly voice their reservations against the Law Lords, submission is the only way to survive, secure remedies and grow. The Judiciary and the Collegium system is not perfect, for the reason that it has refused to address these concerns and lacks the minimum standard of checks and balances.
However instead of correcting a system that requires correction, the executive and legislature, for reasons we can only speculate, want to substitute the system itself. Therefore, the criticism against the Commission is substantial and reasonably founded.
Democracy is not just by the people, of the people and for the people. Rather, it is a set of values that recognises the inherent autonomy and right of every individual. It is a way of life, where the individual liberties of a person are balanced vis-à-vis, the collective will and interests of the population.
In this system, the state machinery solicits submission of the individual to only those persons and laws, which the individual has chosen to submit to within the framework of the constitution. The judges enjoy the respect and standing, because they have been given that place, by us, through a system designed and implemented by we the people.
Therefore, the debate about judicial reforms is not so much about executive interference, basic structure or independence of judiciary. Rather, it is about infusing a democratic way of life into the functioning of our courts, a priority that is lost on us during this entire evolution of the manner of judicial appointments. The observations made above are just a sneak preview of the larger issues that wegrapple with in the judiciary.
Consequently, Judicial reforms is not just about who has a say in the appointment of judges, but it is about the realisation that we are anything but perfect and our culture, which is bereft of accountability, both in the bar and on the bench, needs to change, if the system has to work. Until we address these issues, neither the collegium nor the Commission can help salvage the loss of faith of the common man in the judiciary, a trend which we would be wise not to ignore.
By: Ashok G.V.
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