Delhi Diary/By A K B Krishnan
The Salman Khan drunk-driving case took 13 years for a verdict. The Jayalalithaa disproportionate assets case took 18. The Lalit Narain Mishra assassination case 41 years. A judge of the Madras High Court had threatened to file a contempt of court case against the chief justice of the same court. An unseemly battle is raging between the Chief Justice of India (CJI) and the government of Narendra Modi over who should have primacy in the appointment of judges to the higher courts.
If others are not suing, the judges are suing each other! No wonder there are more than 28mn cases pending in Indian courts, some as old as 80 years! Under-trials spend years and years in jail - some more than what the law stipulates even if found guilty - only to be freed for lack of evidence or some such equally silly reason. There indeed is something rotten in the state of affairs of the Indian judicial system.
Times were when judges, from the sub-ordinate and district level all the way to the Supreme Court, were looked up to as near-infallible, almost super-human. Most major pronouncements were works of classic proportions not just in terms of the even-handedness of the verdicts but also for their language and literary flourish. Now even Supreme Court judgments attract criticism, many of them well-founded.
(Only last week the apex court ruled that government advertisements should not carry pictures of political leaders except the prime minister’s and that only the president and the CJI are the other two dignitaries to be exempted from the purview of the ruling. The legal fraternity, leave alone the political class or the media, has found many loopholes in the ruling.)
Of the 28mn pending cases, a little over 5mn are languishing in higher judiciary, that is the high courts and the Supreme Court. And if cases get that far, they are of high value to the litigants because it costs a tidy sum as court fee and still more to hire lawyers of repute.
According to the latest survey, the high courts in India are short of judges by as much as 34%. The corresponding figure for the Supreme Court is 10. For every 1mn Indians there are only 13 judges, all told, whereas the Law Commission recommends a minimum of 50. Contrast this with the US which has 110 judges for every million people and Sweden that has 130 judges for the same number. India has 30 judges in the Supreme Court, China has 340. Curiously, India is the only country in the world where judges to the higher courts are selected by judges themselves.
It used to be the executive’s, ie; the government’s, job to select judges until the 1980s, but because the Indira Gandhi regime during the Emergency and thereafter indulged in some very questionable methods in the appointments of judges, the Supreme Court took it upon itself through a series of judgments to keep the government out of this very vital function.
Hence, from 1993 onwards the “collegium system” was being followed wherein the judges to the high courts and the Supreme Court were appointed by a club of brother judges.
The net result, as we now realise, is not only the huge backlog of cases at every level but also serious allegations of bias, inefficiency and even nepotism and corruption. Suffice it to say that more and more people have begun to lose faith in judiciary with each passing day. ‘Mobocracy’ is a word that one hears in India almost every day.
The Congress government of Manmohan Singh had made the first move more than three years ago to replace the collegium of judges with another, more broad-based, committee to select the higher judiciary. But as with most things that Singh tried to do, this one too did not get the required impetus to run the distance. It was, therefore, left to the Modi regime to complete the job and this it did within months of coming to power. Parliament approved the Constitution amendment bill to set up the National Judicial Appoints Commission (NJAC) and it was hoped that the long-awaited reforms in the judicial system would now get under way.
As per the NJAC Act 2014, the commission will have six members. The CJI will be the ex-officio chairperson of the commission. The next two most senior judges of the Supreme Court, the federal law minister and two eminent persons (to be nominated by a committee consisting of the prime minister, the CJI and the leader of the opposition in the Lok Sabha) will complete the membership of the commission. So far so good.
When the government approached the CJI to start proceedings on the selection of the two eminent persons the incumbent Chief Justice H L Dattu expressed his inability to do so citing the fact that the very NJAC Act has been challenged in the Supreme Court and a bench is hearing it. Eminent lawyers and constitutional experts like Soli Sorabjee, K K Venugopal and Dushyant Dave are of the view that the CJI is being wrongly advised. The government tried everything in its powers to coax, cajole and even compel Dattu into joining in, but the CJI won’t relent.
Now the nation waits for the Supreme Court to decide if a Constitutional amendment, passed by a two-thirds majority by parliament and ratified by more than 20 states, is constitutional or not. We have no way of knowing when the court will give its decision. One can only hope that it will not have the fate similar to that of the Salman Khan/Jayalalithaa/L N Mishra cases.
Meanwhile, is it not a moot point that pending the outcome of challenge, the law as amended in the Constitution is in force today and, therefore, the CJI has to take the responsibility of the selection process?
‘Family reunion’ is off gain
The on-again-off-again merger of erstwhile socialists into one conglomeration called the ‘Janata Parivar’ is off - again.
There was much bonhomie and sweet-munching among the leaders of the Samajwadi Party (SP) of Uttar Pradesh, the Janata Dal United (JD-U) and the Rashtriya Janata Dal (RJD), both mainly of Bihar, just the other day as they decided to merge into one “big alternative” to the BJP with national ambitions. But hardly had those ‘laddoos’ gone down those voluble throats than the trouble has started.
Ram Gopal Yadav, younger brother of SP supremo Mulayam Singh Yadav and the party’s leader in the Rajya Sabha, has categorically stated that there would not be any merger until the elections to the Bihar state assembly are over and done with. The younger Yadav’s statement came close on the heels of reports that the JD (U) and the RJD are also not finding common ground in possible seat-sharing for the elections due later this year.
The SP has many reasons to be sceptical about a merger. First, it is basically a UP-centred party with little following in Bihar whereas the JD (U) and the RJD have everything at stake in Bihar.
Next, it is by far the richest among the proposed constituents thanks to the many years in power in UP. Apart from a sizeable war-chest that the party can command when elections come round, the SP also owns lots of high value real estate within and outside the state. The Yadavs, somewhat rightfully, dread the thought of having to share all that wealth with ‘outsiders’.
This line of thinking gets added stimulus from the fact that the wrestler-turned-politician Mulayam Singh, at 76, is not exactly his former robust self. Should anything untoward happen to him, the next in line in a post-merger party would not be Mulayam Singh’s son and UP chief minister Akhilesh Yadav or even Ram Gopal Yadav, but the likes of Lalu Prasad of the RJD or Nitish Kumar of the JD (U). For the SP that will be like allowing daylight robbery of the family jewels.
Another reason for the SP to back away, though technical in nature, has to do with visibility. The bicycle has been the SP election symbol ever since it came into existence in 1992. In an obvious move to placate Mulayam Singh, the proponents of the merger had agreed that the new outfit will also keep the bicycle as its symbol. But they had not reckoned with the Election Commission. As per the commission records - and these are sacrosanct - the bicycle is a symbol allotted to a regional party and, therefore, must stay with a regional party.
The commission rules also stipulate that if in a parliamentary elections any party wins more than 6% of the votes polled nationally, then it will cease to be a regional party but will gain national status. Hence, if the new ‘Janata Parivaar’ were to win 6% or more votes in the 2019 Lok Sabha polls, it will lose the symbol but will gain national status. You win some, you lose some, you may say. But the SP is in no mood for such magnanimity.
