No, ‘My Lord’ the Chief Justice of India (or should it be ‘Your Honour’ reiterating 1971 decision by the present Supreme court) – the judiciary does not “impliedly obey” the law passed by parliament – the judiciary owes allegiance only to the Constitution of India and to their own conscience. That is why I am somewhat sad that CJI should have indirectly suggested that judges are not willing on their own to file the statement of assets and the same to be made available to public – especially when the judges do so in USA, England and other common wealth countries. I can appreciate the anxiety to have some provision to prevent vexatious or scandalous accusations by mischievous persons (though it must be remembered that these hazards are common to all public officials whether in the executive or legislature). Of course the self patting by the legislators that they disclose their assets at the time of filing nominations, is conveniently sidetracked by the fact that it was only under the Supreme Court directions in PUCL case that this requirement is now being followed reluctantly.
Of course a question may well be raised, not by the judiciary because it does not enter into public debate but by electorate namely as to what percentage of legislators, including the members of Parliament have filed or filing their statement of assets regularly and whether such information will be available under Right to Information Act.
Some may even embarrass the legislators by making a polite enquiry about the fate of Lok Pal Bill which has been promised by different party governments for over last 30 years – is it that legislators’ accountability is less urgent than judicial accountability – it must be emphasised that overwhelming members of the bar and members of the judiciary themselves are in favour of a law on judicial accountability by a panel which will not only have an in-house membership but will also include a representative from outside jointly selected by Prime Minister and Leader of the Opposition. Let judiciary or legislature not try to score points against each other. Both are integral and essential to our democratic polity – only demarcation of the functions of each is to be recognised and respected.
It is a heartening gesture that the conference has advised High Courts to increase their work period from the present 210 to 220 days, but this seems to have been watered down by suggesting an alternative of increasing half an hour extra; every day. In my humble opinion straightaway increase of 10 days is the only correct method – increase of half an hour will be merely cosmetic.
May I also venture to suggest that on the same parity of reasoning the Supreme Court will also increase its work period to at least 200 days and full working day on Monday and Friday. Let me hasten to add however that at least 70% of 52 Saturdays are utilised by judges in completing judgments and orders unlike the executive who have all 52 Saturdays either as a holiday or on a foreign jaunt.
Similarly I hope the executive will also work out the days it works. On a rough pattern 104 (Sat/Sunday non working days plus 30 days leave with pay plus 10 casual holidays, plus at least 12 Gazetted holidays makes a total of (365 – 156) only 209 working days. So why pick on the judiciary alone.
Parliament, even according to the Vice President and former Speaker Mr. Chatterjee has much to answer – the sitting of the Parliament are becoming less and less and actual work the minimal. Let us in all humility remember what the great Saint Kabir said, “I went out to search a bad person, but could not find anyone but when I looked within myself, I realised that none was worse than myself” – To be honest we all are in the embarrassing position of an en emperor proudly standing in a bath tub but none pointed out till innocent child shouted “the emperor has no clothes” – so none can point figure at the other excepting the real sovereign under our constitution – the people of India.
The conference rightly did not approve the constitution of All India Judicial Service. The whole idea is ludicrous – this was rejected as far back as 1985 chief justices conference. It is well known that in the court proceedings up to district level are carried out in the language of the State. Thus only in Hindi speaking states of UP, MP, Bihar, persons selected from these states could be transferred within. In all other states, i.e. Andhra Pradesh, Tamil Nadu, West Bengal, Punjab, it is impossible to post a person from outside the state because of his non familiarity with the state language. The illustration given of All India Judicial Services like IAS, IPS is completely off the mark. The requirement of their being familiar with state language is rudimentary and only minimal – at a higher level they use English in the administration. Judgments of the courts are a serious business requiring a deep knowledge of state language.
Also at present the High Court is the final controlling and disciplinary authority over subordinate judiciary. But if you have All India Judicial Service then will the disciplinary authority change every time a judge is transferred from one state to another. And also in an All India administrative Service the authority of central government is supreme with limited powers given to the state governments. Who then will be the ultimate Authority – the Supreme Court obviously cannot take the load. So will the central government by this invidiously tactic claim to be the ultimate disciplinary authority. This impinging by the executive would be the surest way to strike at the independence of judiciary.
It is regrettable that chief justices conference did not decide that in the interest of continuity and familiarly with the working of state judiciary, a local chief justice is a must – the present practice of appointing chief justices outside their parent courts and many a time for as short a period as three months of six months has dealt a severe blow to the prestige, harmonious working of the high and serious laxity in the supervision of lower judiciary.
As for uncle-nephew nexus, a chief justice of a High Court had effectively enforced an order that the cases of relations of judges will not be posted before any other judge whose relations are also practicing in the same High Court.
Another embarrassing reflection on the judiciary is the misdemeanour cases pending for a long time against High Court Judges being discussed publicly because the Supreme Court is not taking a final decision.
I may sound harsh but let me put in a caveat by invoking Justice Holmes of USA Supreme Court who said, “I trust that no one will understand me to be speaking with disrespect of the law, because I criticize it so freely… but one may criticize even what one reveres…. And I should show less than devotion, if I did not do what in me lies to improve it.”
[The writer is former Chief Justice, High Court of Delhi, New Delhi]