The heat’s on, my lords

Posted on: January 12, 2014

The heat’s on, my lords

The Indian judiciary is under attack like never before — be it over the recriminalisation of homosexuality, its position on the charge of sexual harassment against retired Supreme Court judges and a host of other decisions that do not seem to match the people’s expectation of a forward-looking judicial system. Are our courts out of step with the times?

The pink-and-white sandstone structure that houses the Supreme Court of India exudes an air of confidence. Its long corridors, stately pillars and manicured lawn all underline a body in power. For long years, in fact, it has been the temple of last resort.

The times have changed. Suddenly, the apex court — which once could do no wrong — is under fire. Judges are being questioned, some judgments condemned and the judiciary is in the dock.

Consider this:

On Saturday, newspapers named a retired Supreme Court judge who had been accused of sexually harassing an intern in 2011.

Earlier this week, retired Supreme Court Justice A.K. Ganguly resigned as chairman of the West Bengal Human Rights Commission after another intern alleged sexual harassment. Her charges had earlier led the Supreme Court to constitute an enquiry committee.

And it’s not just the behaviour of judges that has come under fire. A recent Supreme Court judgment upholding Section 377 criminalising same sex relations has been roundly denounced.

Once, the judiciary was looked upon as the strongest pillar of Indian democracy. No longer. In the past few years, it has been ensnared in controversies ranging from issues related to judges taking bribes to favouritism in appointments. And people are asking questions.

“There is general cynicism regarding public institutions. It is not surprising the court should also get adverse comments,” social scientist Dipankar Gupta says.

Questions are emerging from within as well. In an unprecedented move last month, additional solicitor-general Indira Jaising made public the affidavit filed by the intern in the Ganguly case, demanding his resignation. Ganguly in turn wrote to the Chief Justice, complaining about a “concerted move” to “tarnish” his image. Jaising said on Friday that she was going to take the second intern’s case to its “logical” conclusion.

  • UNDER FIRE: Retired Supreme Court judge A.K. Ganguly

“One of the four walls of democracy is crumbling,” senior advocate Anand Grover holds.

The growing influence of the common man’s frustrations, coupled with relentless media campaigns, has increased the pressure on judges across the country. “The India of today wants an answer to everything. It doesn’t really understand the dos and don’ts of the rulebook. It questions the rulebook instead,” contends Ashum Gupta, professor of psychology, Delhi University (DU).

Indeed, many believe judges — from the apex court to the smallest of courts — can no longer ignore the growing popular resentment. “For an ordinary man, a wrong is a wrong. He doesn’t care about the stature of the person or the institution in question,” professor of law and former Delhi University vice-chancellor Upendra Baxi reasons. “If he is raising slogans against an alleged rape by an ‘ordinary’ citizen, he can also take to the streets in protest against the alleged sexual harassment by a retired Supreme Court judge.”

The spread of the social media has also turned the heat on judges. Twitter and Facebook zero in on comments made by judges. The Supreme Court ruling on homosexuality was derided on these sites over several days, as were a Delhi judge’s recent comments on pre-marital sex and rape.

Additional sessions judge Virender Bhat had observed that pre-marital sex was “immoral” and against the “tenets of every religion”. The same judge, while hearing a similar case in October, had said: “They (women) voluntarily elope with their lovers to explore the greener pastures of bodily pleasure, and on return to their homes, they conveniently fabricate the story of kidnap and rape in order to escape scolds and harsh treatment from the parents.”

Former Supreme Court judge Santosh Hedge says he is not surprised by the sentiments against the judiciary. “If people are criticising the judiciary, the latter has given it every reason to do so. The judiciary should realise the shortcoming of the system, from corruption to long delays in judgments,” he says.

While delays in court proceedings have upped the levels of antagonism against courts (last month, the Gujarat government granted the Nanavati Commission probing the 2002 post-Godhra riots its 21st extension), one of the real reasons for the public ire is the growing perception of corruption.

In 2008, former Punjab and Haryana High Court judge Nirmal Yadav was accused of receiving nearly Rs 2 crore for passing favourable judgments in four cases. In 2010, the names of 26 members of the judiciary in Uttar Pradesh came up in the multi-crore-rupee provident fund scam, with the accusation that they had siphoned off money earmarked for the provident funds of workers.

In September 2010, former Union law minister and senior Supreme Court lawyer Shanti Bhushan told the court that at least eight of 16 chief justices of India (CJI) were “definitely corrupt” — kicking up a storm.

Many believe the time has now come for the judiciary to deal sternly with corruption within — and healthily with criticism from outside. A senior retired judge gives the example of the Spycatcher scandal in Britain. The book, written by a former British spy, was banned by the government, and the ban was judicially upheld. A British newspaper carried a photograph of the judges with their feet up, and the caption: You fools. No action was taken against the daily.

In India, there is always the fear that criticism will lead to contempt of court, and a subsequent prison term. In 2007, three journalists and the publisher of an English tabloid were sentenced to four months in jail by the Delhi High Court for carrying reports that accused a former Chief Justice of India of corruption. In 2002, the Supreme Court issued a suo motu contempt notice to writer Arundhati Roy for her comments against the judiciary, sentencing her to a one-day “symbolic imprisonment” and a Rs 2,000 fine.

There is now a growing belief that the power to initiate contempt proceedings should be abolished. “Such powers do not exist in other jurisdictions such as in the US and in Europe. In the UK too the use of this power has become obsolete,” Baxi says. “The Indian judiciary should understand that they cannot be spared criticism.”

Contempt proceedings have to be done away with because judges, many believe, have to be questioned — and controversial judgments discussed threadbare. Baxi had questioned Supreme Court judges in 1979 in an open letter after the court acquitted two policemen of custodial rape in the Mathura case. The questions — and the outrage that the acquittal triggered — led to amendments to rape laws.

Another way to clean the system would be by ensuring that judges who are selected for senior posts are known for their integrity. The present system — a collegium of senior judges choosing other judges for the Supreme Court — has been criticised for promoting favouritism and overlooking integrity.

“It is one cosy club where decisions are taken by the same group of people,” Grover says. Appointments to higher courts in countries such as the UK and South Africa are finalised through independent commissions, he points out.

Experts say that the present system of impeachment too needs to be reworked to deal with corruption sternly. Supreme Court judges so far can only be removed through impeachment by Parliament.

Also under attack is the system of appointing Supreme Court judges to high posts after retirement. According to a news report, 18 of the 21 judges who’d retired from the Supreme Court since January 2008 had been given top posts in government commissions and tribunals. BJP leader and lawyer Arun Jaitley had earlier mooted a two-year cooling off period for judges before they could take up post retirement appointments. But there were few takers for this.

Many hope that the situation will look up once the Judicial Standards and Accountability Bill is passed. The bill seeks to replace the collegium system of appointment with a Judicial Appointments Commission for appointment and transfer of Supreme Court and high court judges. Moreover, under this bill, judges will be required to declare their assets and liabilities.

The bill also establishes the National Judicial Oversight Committee, a Complaints Scrutiny Panel and an investigation committee. Any person can make a complaint against a judge to the Oversight Committee on grounds of “misbehaviour”.

Not surprisingly, not everybody in the judiciary has welcomed this with open arms. Some judges have argued that the bill interferes with the independence of the judiciary. The harsh arc lights on judges and rulings are also being viewed as a form of unwarranted interference.

“I don’t understand who stands to gain by criticising the judiciary,” says former Chief Justice of India Altamas Kabir. “This criticism will only serve to undermine the authority of the Supreme Court and affect the role assigned to it under the Constitution. Only such persons who wish to see a weak and pliant judiciary can support such a trend.”

Yet many of those questioning the judiciary are not arguing for a weak justice system. Ironically, the judiciary is seen as strong and interventionist when the executive — or the government — is seen to be weak. On the other hand, when the executive is strong, the political class often comes down heavily on the judiciary.

A balance between the two is the answer. “In a democracy, ideally, the two pillars — the executive and the judiciary — should criticise each other for perfect balance. But our situation is tricky — we have a weak executive and an overstepping judiciary,” says senior Supreme Court advocate Pinki Anand. “Our society is in peril.”


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  • ranginee09: It is clear, justice eludes many but to imprison a man for his humanitarian deeds in a civilised society leaves an permanent blotch in our criminal ju
  • ranginee09: The article points-out a very pertinent social ill. Social ostracisation in childhood may have unwanted results later in life. A child victim is not a
  • Seeker and her search: Thanks for reading, Anne. Yes, I know what you are saying.
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