Judiciary in India shares the world dais with two ignoble institutes which are Military Junta of Myanmar and Military Establishment of Pakistan, in terms of it’s recruitment policy. All three are mini republic within the respective political republic. All three are exclusive clubs insulated from within and in which rules of entry are written by these institutions only. In other words, Judiciary in India not only is final interpreter of Law and Constitution but also the final authority to decide who will be permitted to join the judiciary. Allegations of nepotism apart, it is difficult to find a Judge does not have living or dead ancestor in the judiciary, bureaucracy and politics.
Nepotism in Judiciary
The present system has come under flak from retired judges themselves. One such criticism of judges appointing judges is here. Regarding the corruption by the relatives of judges and inaction by appointing judges read here. Another similar story about corruption is here. Another report about rich relatives of former Chief Justice of India is here. How retired judges are using prefix ‘Justice’ forever i.e. even after leaving the office is another mystery in the face of express prohibition in Constitution. But who can judge the judges?
An attempt to make change through Constitutional amendment has been struck down by Supreme Court of India as unconstitutional. A small discussion about judges appointing judges is given here.
The problem of ‘Mini Republic’ is further compounded by obsolete Colonial era laws. Contract Act is 1872 and ask any lawyer in India: Does a written contract require signatures of the parties? I bet many lawyers would not know the correct answer. But in fact answer depends upon numerous judicial interpretations.
Bail and criminal law is another such archaic law. Penal Code was enacted in 1860. Criminal Law of 1898 was re-polished and enacted in 1973. Provisions of bail give almost absolute discretion to judges except those curtailed by Supreme Court itself. But this vagueness leave ample room for abuse of authority. (We can see that in the case of Arnab Goswami) For Bail, India could look at elaborate Bail Act, 1992 of Australia.
When India got freedom from British it fell into the trap of a family. Elections were conducted in unfair manner till 1990 when T.N. Sheshan,with the help of Supreme Court brought in reforms and that family never came back into power the way it used to. 1990 was the year of financial Reforms as well. The real freedom of India was attained in the year 1990.
However in the same decade (1998) Supreme Court declared that it’s recommendation for appointment of a judge shall be binding. Thus Supreme Court became a mini republic in itself in which outsiders had no business to interfere. This paved the way for new kind of aristocracy in which the descendants of preset and past judges were appointed and this has been criticized by a retired judge herself. (quoted above)
With 33 million ending cases and which number is not going down, it shall be the right time for the legislature to tighten the belt by reviewing the laws beginning with the laws mentioned above. It will take away unnecessary discretion in the hands of judges which they exercise according to personal opinion in the matter not on the basis of principles as legislation passed in colonial era wanted to give undue discretion to judges and bureaucrats.
It will help India regain it’s prestige which presently is not very enthusiastic in foreigners. Though in comparison to China, it is better that India at least has a real judicial system.