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Mainstream, Vol XLVII, No 39, September 12, 2009

Chief Justices’ Conference 2009

Saturday 12 September 2009, by Rajindar Sachar

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No ‘My Lord’, the Chief Justice of India (or should it be ‘your Honour’ reiterating the 1971 decision by the present Supreme Court?), the judiciary does not “impliedly obey” the law passed by Parliament—the judiciary owes allegiance only to the Constitution of India and to their own conscience. That is why I am somewhat sad that the CJI should have indirectly suggested that judges are not willing on their own to file the statement of assets and the same to be made available to the public—especially when the judges do so in the USA, England and other Commonwealth countries. I can appreciate the anxiety to have some provision to prevent vexatious or scandalous accusations by mischie-vous persons (though it must be remembered that these hazards are common to all public officials whether in the executive or legislature). Of course, the self-patting by the legislators that they disclose their assets at the time of filing nominations, is conveniently side-tracked by the fact that it was only under the Supreme Court directions in the PUCL case that this requirement is now being followed reluctantly.

Nonetheless, a question may well be raised, not by the judiciary because it does not enter into public debate but by the electorate, namely, as to what percentage of legislators, including the Members of Parliament have filed or are filing their statements of assets regularly and whether such information will be available under the Right to Information Act.

Some may even embarrass the legislators by making a polite enquiry about the fate of the Lok Pal Bill which has been promised by different party governments for over the last 30 years—is it that legislators’ accountability is less urgent than judicial accountability? It must be emphasised that overwhelming members of the bar and members of the judiciary themselves are in favour of a law on judicial accountability by a panel which will not only have an in-house membership but will also include a representative from outside jointly selected by the Prime Minister and Leader of the Opposition. Let the judiciary or legislature not try to score points against each other. Both are integral and essential to our democratic polity—only the demarcation of the functions of each are to be recognised and respected.

It is a heartening gesture that the Chief Justices’ Conference has advised High Courts to increase their work period from the present 210 to 220 days, but this seems to have been watered down by suggesting an alternative of increasing half-an-hour extra every day. In my humble opinion, a straightaway increase of 10 days is the only correct method—increase of half-an-hour will be merely cosmetic.

May I also venture to suggest that on the same parity of reasoning the Supreme Court will also increase its work period to at least 200 days and full working day on Mondays and Fridays? Let me hasten to add, however, that at least 70 per cent of 52 Saturdays are utilised by judges in completing judgments and orders unlike the executive who have all 52 Saturdays either as a holiday or on a foreign jaunt.

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Similarly I hope the executive will also work out the days it works. On a rough pattern 104 (Saturday/Sunday non-working days) plus 30 days’ leave with pay plus 10 casual holidays, plus at least 12 gazetted holidays makes a total of (365—156) only 209 working days. So why pick on the judiciary alone?

Parliament, even according to the Vice-President and former Lok Sabha Speaker Somnath Chatterjee, has much to answer—the sittings of Parliament are becoming less and less and actual work minimal. Let us in all humility remember what the great Saint Kabir said: “I went out to search a bad person, but could not find anyone but when I looked within myself, I realised that none was worse than myself.” To be honest, we all are in the embarrassing position of an emperor proudly standing in a bath-tub but none pointing out anything till the innocent child shouted: “The emperor has no clothes.” So none can point fingers at the other except the real sovereign under our Constitution—the people of India.

The Conference rightly did not approve the constitution of an All India Judicial Service. The whole idea is ludicrous – this was rejected as far back as the 1985 Chief Justices’ Conference. It is well known that in the court proceedings upto the district level are carried out in the language of the State. Thus only in the Hindi speaking States of UP, MP, Bihar, persons selected from these States could be transferred within. In all other States, that is, Andhra Pradesh, Tamil Nadu, West Bengal, Punjab, it is impossible to post a person from outside the State because of his non-familiarity with the State language. The illustration given of the All India Administrative Services like the IAS, IPS is completely off the mark. The requirement of their being familiar with the State language is rudimentary and only minimal—at a higher level they use English in the administration. Judgments of the courts are a serious business requiring a deep knowledge of the State language.

Also at present the High Court is the final controlling and disciplinary authority over the subordinate judiciary. But if you have an All India Judicial Service then will the disciplinary authority change every time a judge is transferred from one State to another? And also in an All India Administrative Service the authority of the Central Government is supreme with limited powers given to the State governments. Who then will be the ultimate authority? The Supreme Court obviously cannot take the load. So will the Central Government by this invidious tactic claim to be the ultimate disciplinary authority? This impinging by the executive would be the surest way to strike at the independence of the judiciary.

It is regrettable that the Chief Justices’ Conference did not decide that in the interest of continuity and familiarly with the working of the State judiciary, a local Chief Justice is a must—the present practice of appointing Chief Justices outside their parent courts and many a time for as short a period as three months or six months has dealt a severe blow to the prestige, harmonious working of the High Courts and serious laxity in the supervision of the lower judiciary.

As for the uncle-nephew nexus, a Chief Justice of a High Court had effectively enforced an order that the cases of relations of judges will not be posted before any other judge whose relations are also practising in the same High Court.

Another embarrassing reflection on the judiciary is the misdemeanour cases pending for a long time against High Court judges being discussed publiclly because the Supreme Court is not taking a final decision.

I may sound harsh but let me put in a caveat by invoking: Justice Holmes of the US Supreme Court who said: “I trust that no one will understand me to be speaking with disrespect of the law, because I criticise it so freely………but one may criticise even what one reveres……. And I should show less than devotion, if I did not do what in me lies to improve it.”

The author, a retired Chief Justice of the Delhi High Court, is the Chairperson of the Prime Minister’s high-level Committee on the Status of Muslims and the UN Special Rapporteur on Housing. A former President of the People’s Union for Civil Liberties (PUCL), he is a tireless champion of human rights. He can be contacted at e-mail: rsachar1@vsnl.net / rsachar23@bol.net.in

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