REVIEW OF THE ARTICLE
CRISIS OF PUBLIC FAITH IN THE
JUDICIARY
TIME FOR NATIONAL INTROSPECTION *
BY
NANI A. PALKHIVALA
INTRODUCTION
Human beings enjoy
the maximum freedom and power for governing their habitat and environment. This
power enables them to misuse the resources or exploit the not so privileged at
will. Materialism, advanced technologies and a lack of understanding of the
basic cause of existence has led us degradation in our moral values. The most
prominent degradation in our moral values reflects itself in the form of
corruption. In India,
corruption is prevalent at all the levels; peon, officer, telephone lineman,
engineers, doctors, directors, ministers, cabinet secretaries, prime ministers
etc comprise the small cross-section of the long shocking list. The soul of our
democracy i.e., Judiciary is also not an exception. The moral values and
ethical values play a very important role in every individual’s life and also
in each and every field of work. This is also applicable to the higher
judiciary, which our writer describes it as the soul of our democracy. This is
leading to the crisis of public faith in the judiciary and therefore the writer
is stretching his voice to the masses through this article that this is the
time for national introspection.
If wealth is lost, nothing is lost,
If health is lost, something is lost,
If character is lost, everything is lost.
So, the writer wants
to say that a commercial recession can be quickly transferred into a
buoyant economy, but a moral recession cannot be shaken off for years.
Here, the writer is focusing on the degradation of moral and ethical values in
the temple of justice (Court). The judges are the indispensable servants of
society and without them; its most fundamental equilibrium cannot be
maintained. The writer is trying to say that the most important aspect for the
people in the society is justice and truth. People are having utmost faith and
belief in the Judiciary. So, the fundamental equilibrium refers to justice and
if it cannot be maintained or secured, then the law will be defeating its own
object.
The judges are easily becoming pliant. The quality of truthfulness and
accuracy is losing. There were thirteen judges in the case of Keshawananda
Bharati v. State of kerala. Seven judges were in majority who gave
the judgment against the Government and six judges in favour of the government.
After 1973, when the office of chief Justice was vacant, the government has
appointed three Judges in the office of Chief Justice, who were in the minority
opinion and even they were not the senior most judges. The government expressly
proclaimed that it wanted committed judges. What does a committed judge mean?
It doesn’t mean committed to justice, but committed to ruling party. As those
three judges were in the favour of government in keshavananda’s case,
they were preferred. This led to the beginning
of an era of judiciary made to measure. The writer says that a
judge who decides wrongly out of motives of self-promotion is no less corrupt
than a judge who decides wrongly out of motives of financial gain. It
is because that if a judge decides the case wrongly for a financial gain, he
must be evil in only that particular case, but a judge who decides wrongly out
of motives of self-promotion will be indulging in illegal activities and giving
unlawful judgments throughout his service for reaching higher positions and for
stepping on the greater thorns.
The writer says that evil is more infectious than AIDS
and, if unchecked, progresses with an inevitable momentum of its own.
It means that the world is getting rid of many dreadful diseases, but it is
very difficult to get rid if such evils. Disease affects a person and he alone
suffers the pain, but evil is such a infectious one that society at large will
be affected and suffered.
Before 1970s, the people were having good faith and trust in
the soul of our democracy and believes that court is the temple of justice and
the judges always deliver the truth and provides justice to the aggrieved
party. So, in the first two decades of our republic, it was the compulsion of
veracity and belief in that veracity which led the people or parties of the
case to remain silent. But after 1970s, the total scenario was changed. Now
also the people remain silent not because of the veracity, but the fear of the
law relating to the contempt of court. This fear is the main cause and
responsible for the fact that no charges of corruption were leveled against the
judiciary.
An individual cannot
do anything against a great evil. There should be some social backup and only a
social revolution i.e, revolution by masses and society at large can make
anything possible. The lawyers association of Bombay passes a resolution in 1990 virtually
charging some judges of the high court with corruption- a move unprecedented in
the history of any modern democracy. Injustice to party is nothing but
injustice to his lawyer also. The allegations of that association are virtual,
but not complete. This also because of their fear of contempt of court and
defamation. So, they have not mentioned the names in particular but alleged on
some judges of high court in general.
Some people thought that it was not right to condemn the
judges without hearing them. The writer says that those who do not
approve the action must at least approve of the objective. Their
wordings will not matter when their object is to restrict such type of judicial
officers from indulging in illegal activities. So, no doubt, this should form a
room for debate. The lawyers association of Bombay passed this resolution collectively
because they could do with practical impunity so as to be saved from criminal
contempt of court if done individually. This clearly shows that there is not
only political fear in the society but also judicial fear of the people. People
should feel free to go to courts but not out of fear. People must be provided
justice but they should not beg for this. So, this is not only the cry of
clients but also a cry of despair for lawyers. The issue affects not
merely lawyers and litigants but the entire nation. Hence the writer
says that all citizens are vitally interested in an unpolluted stream of
justice.
Now the writer is saying that this is the time for
deep, national introspection and we should be self-critical enough to meet the
truth face to face. Now days the temple of justice and bar is becoming
more commercialized than ever before. Today, the law is looked upon not as a
learned profession but as a lucrative one which is making a large profit and
cashing the hardship of the aggrieved parties.
People generally speak, bad about politicians. The fact
is that if you lose faith in politicians, you can change them, but if you lose
faith in judges, you still have to live with them and obey them. So, in
the modern world, the ineluctable fact and unavoidable fact is that the conduct
of some judicial officers in different courts has been far from exemplary in
terms of ethics and lacking the moral values which will be having its bad
impact on the society at large.
The writer was saying that the corruption in upper
reaches of the judiciary is illustrative if the incredible debasement of our
national character. It means that the corruption has reached to such a
gigantic level that it is very difficult to believe the degradation or making
worse the value of our national character. Even this corruption is becoming a
peculiar feature of general acceptance by public.
The unfair means is not only prevailing in appointment of
judges but also in the impeachment of the judges. The writer has quoted a very good
example from the past. An impeachment proceeding in parliament - the only
constitutional way of removing a judge of high court or the Supreme Court from
his office-is a procedure not to be resorted lightly. It is enormously cumbersome and is likely to
bring political passions into play. A striking example of the malfunctioning of
our democracy is afforded by the fact that the only impeachment proceeding ever
sought to be started in our parliament was that against one of the finest
judges, J.C.Shah, a judge of impeccable integrity. It was a move commenced by a
disgruntled, dishonest civil servant against whom Justice Shah had given a
judgment in the Supreme Court, and who cunningly managed to secure as many as
199 signatures of members of the parliament for an appeal to the speaker of the
Lok Sabha to start impeachment proceedings against the judge. It means that
even there is no place for a sincere judge as however there is no place for
justice.
Hence the writer of this article concludes by giving a
solution that the best way of dealing with the problem is to have a law
regarding the procedure to be followed when there are allegations of the type
the lawyers’ associations have made. The writer says that the matter should be
placed confidentially before the chief justice of high court for inquiring into
the case. If his view is that there is no substance in the allegation, the matter
should be regarded as closed. If he thinks otherwise, the case should be
referred to the Chief Justice of India and two Supreme court judges who would
be members of the National Judicial Commission proposed to be constituted by
the constitution Bill, 1990 which was introduced in the Lok Sabha in that
session. Therefore, the writer says that this would be a dignified and quietly
effective way of dealing with men unworthy of holding high judicial office.
Hence the lawyers
association should not do public disservice but has to do public service and it
should not create an impression in the public mind that our higher judiciary is
not worthy of public confidence and respect. All the law makers are not law
breakers. We can’t pass a comment in general because luckily, the overwhelming
majority of our judges in the eighteen High courts and Supreme Court are men of
integrity, while some of them combine character with outstanding caliber. Hence
this is a plea and an appeal for the whole judiciary of the country to protect
the gates of law, they should themselves reflect as the mirrors of justice,
safeguard the sanctity of law and to make each and every home in the country as
an ideal happy home.
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