Sunday, October 11, 2009

The Judiciary and Governance in India
Madhav Godbole
Rupa & Co

In pursuit of justice

Rajesh Singh

The dispensation of justice is an essential component of democratic governance in civil society. People expect such justice – comprising both timeliness and fairness in order to be effective – from their elected representatives, the police, the bureaucracy and various other arms of the government. But most of all, they depend on the judiciary for protection of their right and punishment of the wrong. The dependence has grown of late, and in various manifestations, triggering a nationwide debate on the sagacity of the judiciary to extend its influence over issues that are ostensibly within the government’s jurisdiction.

Those who have most felt the heat of judicial ‘activism,’ are understandably upset by the phenomenon while the beneficiaries are all praise. But both realize that eventually the judiciary cannot govern the country. However flawed the Executive might be, it is vested with the powers to administer. Since persistent failure to perform its role is one cause for judicial intervention, the Executive can keep extraneous interferences out by doing its job.

Unfortunately, in several instances, not only have governments failed to provide direction, they have shunned solutions out of political convenience, deliberating leaving the doors open for the judiciary to offer a face-saving way out. An example that immediately comes to mind is that of the Babri mosque-Ram Janmabhoomi issue that remains unresolved because the political class does not have the will to settle the dispute through engagement with stake-holders including religious organizations and citizen initiatives. The judiciary is now saddled with a politico-religious matter, since the Executive has virtually washed it hands off the matter saying the matter is ``sub judice.’’

The need for the judiciary and the Executive to co-habit harmoniously without constantly questioning and threatening each other forms the underlying theme of Madhav Godbole’s nearly 600-page book. In an authoritative study of the subject, the former HomeSecretary delves deep into the various flashpoints. The author sets the tone in the Introduction with a clash. He begins with a quote by Jawaharlal Nehru in the Constituent Assembly: “No Supreme Court and no judiciary can stand in judgement over the sovereign will of Parliament representing the will of the entire community… So it is important that with this limitation the judiciary should function.” The counterpoint was provided the Chief Justice of India in 1952: “While the court naturally attaches great weight to the legislative judgement, it cannot desert its own duty to determine finally the constitutionality of an impugned statute.’’

Thus, contrary to generally held belief that the Executive-Court clashes are a new development, the ‘rivalry’ is at least as old as the Constitution itself, with the two sides always holding the sacred document as the inspiration behind their respective positions. But as one reads Godbole’s voluminous work, it become clear that he is not out to give a drab version of the conflict; he takes the clear position that the courts need to re-visit their ‘hyper-active’ role, even as he acknowledges the indispensability of a robust judiciary in a functional democracy as also recurring situations where the judiciary had to necessarily step in.

In the context of the increasing number of policy issues coming before the courts, he accepts that this was “due to the reluctance of the elected government to deal with them. They (governments) seem to be more happy to let the court step in and arbitrate on the issues.’’ But then he is quick to point out that while the Supreme Court may be the “final arbiter” it is not “infallible.”

And, if any doubt still remains on the approach, the author towards the end of Introduction clears it with a quote from retired justice V R Krishna Iyer, who from all accounts is very quotable indeed – “No more can we leave judicial reforms to judges alone than war to generals alone, budgets to economists alone, government to bureaucrats alone, or the nation to politicians alone.” To further dent the judiciary’s ‘omniscience’ Godbole summons a similar punch line from the legal luminary, Fali Nariman: ``Something more potent than the Law Commission is required to revive our moribund and wayward legal system.’’

The book then laboriously launches into just how moribund and wayward our judicial system is, taking care though to litter the scholarly text with occasional praise for the courts. Godbole takes all of 100 pages to highlight the lack of judicial reforms in the country. The chapter is pessimistically titled `Judicial Reforms Nowhere in Sight,’ and deals with a plethora of drawbacks, including the lack of data base on cases – listing, adjournment, court attendance of witnesses, days consumed on arguments (written or oral); opaqueness in information providing mechanism; increasing backlog of cases; gray areas in perjury; provisions on anticipatory bail; and, plea bargaining.

The author also indulges in a feisty discussion on the accusatorial versus the inquisitorial system of justice that prevails in several European countries. He quotes B K Nehru saying that under the European system investigation into a crime is done by the police under the supervision of a magistrate who is an officer of the court and not the Executive. He further reproduces statements from the Justice Malimath Committee report on Reforms of Criminal Justice System. The learned judge – now retired but vocal as before -- remarked (according to the book): “The inquisitorial system is certainly efficient in the sense that the investigation is supervised by the judicial magistrate which results in a higher rate of conviction.’’

But the committee also observed that a ``fair trial’’ was better protected in the adversial system. On the whole, the panel felt that the better features of the inquisitorial system should be incorporated in the existing procedure being followed in India.

Godbole also presents an insightful account of the growing irrelevance of commissions of inquiry, and offers irrefutable examples of how inquiry commissions were rendered useless by governments, both those that created them and their successors. It is hardly surprising that he calls them “blunted” instruments. He sees a ray of hope only if “the question of revamping the Commissions of Inquiry Act (CoI) 1952, is examined seriously, in the very disappointing outcome of the commissions of inquiry so far.”

The author has nailed the “uselessness” of the inquiry panels under the CoI Act by upholding the efficacy of citizens’ tribunals and commissions. He points to the Citizens Commission on the anti-Sikh riots and the citizens’ tribunal on Gujarat riots as fine examples of bringing not just facts to light but also placing accountability.

Godbole does not emerge an optimist through the book. Perhaps, given his personal experiences, that is understandable. He suggests remedies but also adds in the same breath that they would not be implemented. So, we are back to square one. He ends his discourse thus: “We have, from the perspective of the civil society, made a series of recommendations… However, there are no prospects in the near future of the executive and the Parliament, lacking as they are in political and moral courage and stature, addressing them.’’

He has hit the nail on the head. That also explains just why the judiciary is getting involved in issues that the political class should be addressing.