Is, in your considered opinion, Indian judicial system transparent & accountable?
Here are some of the extracts from a Letter which was sent to H.E. the President of the Republic of India, by the Indian Ex-Servicemen's Bar Association (Regd):-
"It is an irony of our intellectual bankruptcy in designing our various sub-systems for National governance, that:-
a) Though the Research & Development is in the hands of those intellectuals who are competent in fathoming and harnessing the secrets of our Environment & the Laws of Nature, yet the fruits of the efforts of this eminently knowledgeable class are being placed in the hands of semi-literates who are adept only in applied emotional intelligence (viz. those who can successfully manipulate the masses in order to win Elections to powerful positions).
Though a scientist is required to go through a temporally longish intellectual tread-mill and highly competitive (and elaborate) performance criteria--even to enter the highly demanding profession of a Scientist/Educationist/IFS/IAS/IPS/IAF/Army/Navy or to earn even a small promotion, yet a person (who joined LL B solely because he was intellectually incompatible for a more demanding curriculum) gets a quantum jump to the mighty office of Judgeship of a High Court or Supreme Court--without even a whisper of any Examination at all. And such a mediocre person then decides the fate of the career & promotions of those who studied at those prestigious Institutions whose portals the mediocre LL B-degree-holder could not even dream to pass.
c) Since those who are Constitutionally empowered to sit as the sole Disciplinary Authority over the High Court & Supreme Court Judges (during the impeachment-proceedings) are at the discretionary mercy of the lowliest of the lowly Magistrate (viz. in matters of Bail in their personal scams), can these individual members of the Disciplinary Authority be seen to have acted without fear or favour in any impeachment proceedings?
Hence, it is necessary that the personal matters of the Hon’ble Parliamentarians ought to be tried & decided by special courts of law--which are directly under the control of a Collegium appointed by His Excellency the President of the Republic of India. Such a Collegium may comprise of the following Constitutional authorities:
Speaker of Lok Sabha, Chairman of Rajya Sabha, Central Vigilance Commissioner (or Lok Ayukta), Comptroller & Auditor-General of India, Chief Information Commissioner, Chief Election Commissioner, Chief Justice of India and 10 Speakers—who may be sent, by rotation, by the State Legislative Assemblies.
Moreso, the Supreme Court of India shall have no power of judicial review against the decision of such special Courts. It is pertinent to mention that the Hon’ble Chief Justice of India (CJI) is included since this office is a Constitutional Office—in contradistinction to the position of a mere Judge of the Supreme Court. It is only in the said Constitutional capacity that the CJI takes over as the officiating President, when both the President & the Vice-President are not available.
The aforesaid special Court should decide all the personal matters of MPs, including the ‘disproportionate assets’ cases--disproportionate to their known & pre-declared (pre-Elections) sources of income. In any case, the MPs are a distinct & separate class or category of ‘public servants’-- who are not governed by Article 311 of the Constitution and, hence, they must be treated differently under the Prevention of Corruption Act.
However, the procedure of these courts must be summary, there should be no Appeal from its decisions, and the quantum punishment awarded by it may be more stringent than that awarded by the ordinary courts (e.g. the punishment may be equal to the one which is normally awarded by the ordinary courts in those cases where the offender has committed a second offence of similar nature).
d) If those who are elevated to the High Court as Judges, are posted to the same very High Court in which (or in the courts subordinate to which) they had earlier practised as Lawyers (or had worked as Magistrates) then they do get an opportunity to settle personal scores against their erstwhile colleagues, or, may be, their vast judicial discretion gets occasionally influenced unduly if the lawyer pleading the case before them was perceived as a friend or foe in the past.
e) The elevation of lawyers to the Bench--directly & solely by the judiciary, is impossible unless a dossier is kept on the Advocates. However, such a judicial control over the Lawyers renders the Advocates Act redundant, and makes the Lawyers servile to the judiciary. Both these situations grossly violate the underlying spirit of the Advocates Act.
On the other hand, the Government is authorised to maintain dossiers on the judicial officers as well as on the Lawyers and, hence, it alone is in a position to screen the candidates before elevating them to the High Courts/Supreme Court as Judges. But the Hon’ble Supreme Court has, without any legislative provision to support such a judicial decision, taken away this power from the Government as well as from His Excellency the Constitutional Head of State (the President).
It is pertinent to add that the Supreme Court/High Courts cannot maintain dossiers on the Lawyers because there is a specific bar against the same–under the Advocates Act. Moreso, such a dossier dilutes the duty of the Lawyer to act as the eyes & ears of the public for keeping a watch over the judiciary itself—so that the stream of Justice remains pure.
f) H.E. the then President of India, Shri K R Narayanan had said on record, "The cathedrals of justice have become like casinos".
The empirical findings of the Transparency International (a well known International Organisation) last year, reveals that the lower judiciary in India is the second most corrupt Governmental Department—the police has been adjudged as the first. Though the said findings have been published internationally, yet the same have never been challenged till date.
Although the Hon’ble Prime Minister Manmohan Singh, too, has publicly lamented about the conduct of the lower judiciary, yet this is one of the only two sources from which men & women are being elevated to the High Courts/Supreme Court--without there being any mechanism or examination at all to objectively screen the said candidates.
Hence, even such individuals are likely to be elevated as were found unfit to become even Magistrates or Addl Sessions Judges, or those who had earlier been forced to resign as Additional Sessions Judges, or even those in whose dossiers the Ld. Administrative Judge(s) had made adverse remarks—several such instances may be unearthed by a Parliamentary Inquiry.
g) The absence of any express provision of law to pray for a change of the Bench (Coram) within the same High Court or Supreme Court—for whatsoever well deserving reasons the change may be necessitated, might lead to avoidable miscarriage of Justice.
h) There must be a Constitutional or statutory or even a self-imposed bar against the ‘all-expenses-paid invitations’ to sitting Judges to attend--especially at International venues, a conference which is organised by a Federation of Bar Associations or a Bar Association of which local Lawyers are Members (who have, as such, borne the said expenses). Or else, these Lawyers ought not to appear before the same Hon’ble Judges in their local Courts—otherwise, it might embarrass both the Guest and the Hosts in the eyes of the general public.
i) The standing Public Grievances Committee of the Rajya Sabha may be authorised to receive signed complaints from fellow citizens against the judiciary so that the Hon’ble Parliament is enabled to examine the conduct of such judicial officers as are amenable to its impeachment jurisdiction.
j) It is only the Parliament which--by virtue of its representative and accountable nature, should be entitled to have the supervening sovereign power to overrule (within the written Constitutional framework) the actions of the other two Organs of the State. Hence, with great respect, the law laid down by the Hon’ble Supreme Court to the effect that the President shall have to abide by the choice of Judges made only by the Supreme Court--in matters of elevation & transfer of Judges, is not in accordance with the well considered scheme of the Constitution, the Principles of balance of power and accountability in any Democracy.
Unfortunately, such extra-Constitutional judicial legislation can lead to the arrogation of power to decide one’s own service conditions, pay & perks, appointment, promotion and postings.
k) It is a Universally acknowledged fact that respect for any justice delivery system stems from the speed & quality of its judgments—that is to say, its Judgments must arouse the perception that justice has been done well within time or, et least, justice is seen to have been done.
As a corollary, all judicial fora (including the Hon’ble Supreme Court) ought to write speaking Orders, howsoever brief. Such a mandate will ensure transparency & accountability."
Do YOU agree?