INDIAN JUDICIARY AND REVIEW OF THE CONSTITUTION OF INDIA Authors - VT Joshi & Anil Chawla

Indian judiciary has become a decaying institution that has no internal mechanisms or will or strength to adapt to the changing times. The judiciary has become almost a law unto itself, answerable to none and under no pressures to reform or change with time. The irony of the situation is that there are some politicians who still look upon the judiciary with hope and like to involve members of the judiciary in every possible field that needs some thinking. Government of India has announced its intention to appoint a Commission to review the Constitution of India. In the absence of any indications about the possible members of the Constitution, it is not unlikely that the Government may appoint some retired Supreme Court judges as members of the proposed Commission. Such a commission will be a big set-back to the process of review of the Constitution.

Historically in almost all European countries, judiciary was at one time or the other an extension of the Church. Evolution of the judiciary from a wing of the Church to a secular institution has involved an elaborate process that has differed from country to country. In the pre-industrial-revolution era judiciary in Europe represented the feudal classes. In the past century judiciary in Europe has been transformed into a liberal institution comprising of middle class persons and representing the middle-class values. Even as a feudal set-up the judiciary in Europe had links with the social structure as it existed then. In its present form, the judiciary in all democratic countries of Europe and America, is an integral part of the society and has extensive linkages with the society. In many countries the system of jury has ensured the involvement of local populace in judicial decision-making.

On the other hand Indian judiciary started as an extension of the colonial regime. British set up a poor copy of the British judicial system as Indian judicial system. The judges (generally British in pre-independence India) were the symbol of imperial power and all the systems and procedures of the court were intended to humiliate the natives. Even after Indians were appointed as judges, any contact between judges and the common people was discouraged. The concept of jury was anathema since it would have involved the local people in decision making process.

Procedures in Indian courts have not changed much during the post-independence period. The pre-independence practice of humiliation of the natives at the courts continues till today. It is not unusual for the accused to be asked to remove shoes and slippers before entering the court-room. The police will often insist that the accused persons stand with folded hands before the judge. The concept that an accused is innocent till proved guilty and must be treated with due respect and dignity finds no place in Indian courts where only the judge has honour and only the advocates are learned.

The effect that such a situation has on the dispensation of justice has not been studied. The alienation of the common man in India with the judicial system leads to his feeling that the court-room is an alien-land almost like a war field where the common notions of morality and ethics have no place. It is not unusual to see in Indian courts persons who are otherwise respectable and God-fearing submit false affidavits and make statements that have no relation to facts. It is often said that 'All is fair in love and war.' In India this gets extended to the court-room where technicalities rather than truth and morality rule. This has led to the Indian courts becoming graveyards of justice instead of being temples of justice.

The evolution of the court from a wing of the Church to a secular institution has involved in most European countries a continuous interaction of the judicial system with the Universities. Liberal education provided by the Universities generated the human resources needed for creation of a liberal secular judicial system. The Universities in Europe have acted as the breeding ground for fresh ideas and have been the home to various think tanks. In almost all democratic countries of Europe there has been a long history of the interaction of the judiciary with the academic world whereby both provided feedback and guidance to each other. Contrast this with the nose-in-the-air attitude of Indian judicial institutions who in line with their imperial history, often look at the judgements of British Courts but have never thought it fit to develop a working relationship with Indian academic community.

The absence of any relationship between the judiciary and the academic community has weakened both institutions in India. Legal education is in a pathetic state in almost all states of India. For most students, getting admission to a course in law is the last option after they have lost all hopes of entering any other profession. It is not unusual to meet qualified practicing lawyers who cannot even draft an application. Such lawyers depend on the typists sitting in the court premises to draft all documents for them and keep accumulating years of 'experience' that enables them to rise to become senior advocates or even judges.

Indian Constitution makes Indian judiciary a self-regulatory body. The Supreme Court and High Courts exercise powers of superintendence and also lay the procedures for conduct of business in the courts. The powers of the Supreme Court are almost unlimited. Article 141 of the Constitution has given Supreme Court powers to act even as a legislative body. Armed with such wide powers, it would have been logical for the judiciary to develop internal decision making processes and systems for intellectual development of its Honourable members. Indian judiciary has failed to do any such thing. Though it has been fortunate to have some of the finest brains as its members, there exist no organized efforts by the judiciary to either attract high quality talent to the legal profession or to nurture the legal profession in India. It will not be an exaggeration to say that the judicial community has failed to act as a self-regulating autonomous responsible body. This is in spite of the fact that in their individual capacities many judges earn respect from all concerned and truly deserve the honours associated with their positions.

The virtual collapse of judicial system in India can be seen in the extra-ordinary time taken for settlement of any case and the large number of cases pending before the courts at all levels. An illustrative example is the criminal case against Mr. LK Advani (Presently Home Minister of India) pending before a court in Gwalior for the past seventeen years. The case relates to a minor technical concealment of facts. Mr. Advani applied for his name being included in the electoral rolls of Gwalior and inadvertently failed to mention that his name had not till then been removed from the rolls at Gujarat, though he had initiated due steps for the removal. The case has been filed by a junior political worker of Congress (opposition party) with an intention to harass Mr. Advani. Advocate Shantilal Lodha who represents Mr. Advani expects the final arguments to be heard by the court on 27th November, 1999 and a decision sometime thereafter. Even if the court pronounces a judgement in December, as expected, it will only mean the end of first round of litigation and there will be many more rounds in higher courts. The case may most probably travel all the way to the Supreme Court but nobody can guess the time that this long drawn-out process might take. PV Narsimha Rao, former Prime Minister, who is in his eighties and is facing a large number of legal cases on various charges is said to have remarked in exasperation that death alone will settle his cases.

The poor judicial system in India has attracted world-wide attention. International investors and corporations take this as one of the big hurdles of doing business in India. Businessmen in India resort to all means other than courts for settlement of disputes. Courts are considered only as a last resort or as an alternative to be used for harassment of the opposite party. The situation is indeed alarming and calls for immediate steps on war-footing. The only institution who can stem this rot is the judiciary itself, but the judiciary does not even seem aware of the problem.

The appointment of a Commission to carry out a review of the Constitution must be viewed in the light of the above scenario. It is tempting to look at some retired Supreme Court judges as natural persons to carry out such a review. Traditionally in any democracy, it is the duty of the political class to debate and to carry out such structural reforms. It is not unusual for the politicians in India to lean on retired judges, bureaucrats and even army officers for carrying out duties that are in a democracy responsibility of the political class. The political class must realize that this sort of abrogation of duties is detrimental to the future of democracy. Notwithstanding the crisis of confidence that the political class faces, the politicians must ask the judiciary to reform their own house. The task of review of Constitution should be assigned to academicians and independent thinkers who can think objectively and creatively. It will be the greatest folly to let members of a sick institution that derives strength from its imperial past and feels proud in humiliating the citizens of the country is allowed to have any say in the review of the Constitution.

VT JOSHI & ANIL CHAWLA

10th November, 1999

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VT JOSHI (1925-2008) worked for more than fifty years as a journalist. He retired from THE TIMES OF INDIA in 1989. During 1985-89 he was the Special Correspondent of THE TIMES OF INDIA in Pakistan. His books "PAKISTAN: ZIA TO BENAZIR" and "INDIA AT CROSS ROADS" (co-author GG Puri) were widely reviewed in both India and Pakistan.

ANIL CHAWLA is an engineer by qualification but a philosopher by vocation and a management consultant by profession.

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