• kewal sethi

judiciary--- india's strength or biggest weakness

judiciary--- india's strength or biggest weakness

(note - this article was written in feb 2013)

the article starts with a basic problem. the categories listed should be

1. legislative 2. executive and 3. judiciary.

i have no problems with the category of monitors which today mean only CAG. election commission is mainly meant to conduct the elections, though it has usurped the right to monitor by enacting a toothless, unenforceable code of conduct. i have yet to come across a case in which his objections have resulted in a concrete action.

it is for the legislative to enact the laws. my contention is that they are the only competent authority to decide what that law means. the judiciary cannot assign to itself the role to determine what the intentions of the legislature were. unfortunately they are not only doing so but also directing how to amend certain laws (example chief information commissioner). the only examination of a law, that they can do, is whether in infringes any provisions of the constitution especially the fundamental rights.

the separation of judiciary has been a byword in indian politics after independence. it is a misconceived idea. nowhere in the world such independence is in vogue. at the higher level, this separation is justified but not at the lower level. independence has come to mean total neglect of responsibility towards society. prevention of crime is not merely the duty of the police and the society. it is equally the responsibility of the judiciary. by exercising its discretion in the favour of the accused, it is indirectly encouraging the crime.

one of the malaise of the judicial independence is its indulgence. lawyers were called in UK the officers of the court. this is adopted in india in toto. the result is that there is a nexus between the presiding officer and the presenting officer. repeated adjournments, long winded speeches of arraignment and defence, harassing of witnesses are the results of this collusion.

trade union-ism in judiciary has meant almost total absence of action against subordinate judiciary. corruption, if it is patent on the face of it, is exception but wrong judgments are not. the undertrial suffers as a consequence. setting aside of acquittal of 40 accused recently is the latest example. no one will be hauled up for this mistake. the recent withdrawal of case by NIA against a karnataka scribe after six months is another instance. there will be no compensation for his loss of liberty for so many months. judicial remand was granted without examining the record. i have come across worse cases.

and the weapon to assert their supremacy is the contemptible law of contempt. nowhere the accuser is also the judge. if the contempt means lowering the dignity of the judiciary in the eyes of the public, it should be for the public to judge it and pronounce its judgment on it. a jury trial with no over-riding powers for the judge is the only way to do it. and the jury should not have any person connected with legal system (lawyers, i have said above, are part of the trade union).

another weapon to maintain supremacy is PIL. thoroughly against the basic concept of judicial system, this has been used to browbeat the officials. the politicians are seldom touched, except when they specifically ask for it (kalyan singh sentenced for a day). there is a concept of class litigation, which should replace the PIL. the suo moto cognizance of an issue should be specifically barred.

the legislative is weak now, being shortsighted, but one day it has to assert itself.


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