The Chief Justices’ Conference 2009: Questions and Answers

No, My Lord the Chief Justice of India (or should I say ‘Your Honour’, reaffirming a resolution passed by the Chief Justices’ Conference in 1971?) – The judiciary does not "impliedly obey" the laws passed by Parliament. Members of the judiciary owe allegiance only to the Constitution of India and to their own conscience. That is why I am somewhat saddened by the chief justice of India’s indirect suggestion that judges in India are themselves unwilling to file a statement of their assets and allow them to be made public, especially when one considers that judges do so in the USA and in England and other Commonwealth countries. I can appreciate the concerns about, and the need for some provision to prevent, vexatious or scandalous accusations by mischief-makers (although it must be remembered that these hazards are common to all public officials, whether in the executive or the legislature).

Of course, the self-congratulation by legislators claiming that they disclose their assets when they file their nomination papers conveniently sidesteps the fact that it was only after the Supreme Court issued directions (May 2002) in the PUCL case that this requirement is now being rather reluctantly adhered to. A question may well be raised, not by the judiciary because it does not enter into public debate but by the electorate, as to what percentage of legislators, including members of Parliament, have filed or are filing a statement of their assets regularly and whether such information will be available under the Right to Information Act.

Some may even embarrass our legislators by making a polite inquiry about the fate of the Lok Pal Bill, intended to check corruption in high places, which has been promised by different parties in government for the last 30 years – is it that the accountability of legislators is less urgent than judicial accountability? It must be emphasised here that an overwhelming number of members of the bar and members of the judiciary themselves are in favour of a law on judicial accountability to be effected by a panel that will not only have an in-house membership but will also include a representative from outside jointly selected by the prime minister and the leader of the opposition. Let not the judiciary or the legislature try to score points off each other. Both are integral and essential to our democratic polity yet the demarcation between the functions of each must be recognised and respected.

It is heartening that the Chief Justices’ Conference has advised high courts to increase their annual work period from the present 210 days to 220 days a year. However, their recommendation seems to have been watered down by the proposed alternative – working an extra half-hour on every workday. In my humble opinion, a straightforward increase of 10 working days is the only correct method – the increase of the working day by half an hour will only have a cosmetic impact. I shall also venture to suggest that, by parity of reasoning, the Supreme Court must also increase its work period to at least 200 workdays a year with a full working day on Mondays and Fridays. Let me hasten to clarify however that the judges in fact utilise at least 70 per cent of the 52 Saturdays in each year to complete judgements and orders, unlike members of the executive who get all 52 Saturdays off, either as holidays or for their jaunts abroad.

By the same token, I hope members of the executive will also work out an increase in the number of days they work. At a rough estimate, they have 156 days off (including 104 Saturdays/Sundays/non-working days, 30 days of paid leave, 10 days of casual leave and at least 12 gazetted holidays) which leaves just 209 working days each year. So why pick on the judiciary alone?

The Parliament of India (even according to the vice-president and the former Lok Sabha speaker, Mr Somnath Chatterjee) has much to answer for. Parliament sittings are becoming fewer and fewer and the amount of actual work done is negligible. Let us in all humility remember what the great saint Kabir said, "I went looking for a bad person and found none but when I looked within myself, I realised that no one was worse than me." To be honest, we find ourselves in the embarrassing position of the fabled emperor who stood proudly in his birthday suit while no one said anything until an innocent child shouted, "The emperor has no clothes!" Thus none of us can point a finger at the other, none except the real sovereign under our Constitution – the people of India.

The 2009 conference rightly did not approve the constitution of an All India Judicial Service. The whole idea is ludicrous; it was rejected by the Chief Justices’ Conference as far back as 1985. It is well known that up to the district level, court proceedings are conducted in the language of the respective state. So it is only persons selected from the Hindi-speaking states of Uttar Pradesh, Madhya Pradesh and Bihar who can be transferred within these states. In all the other states, Andhra Pradesh, Tamil Nadu, West Bengal, Punjab and so on, it is impossible to appoint persons from outside the state because of their unfamiliarity with the state language. Likening the proposed All India Judicial Service to services like the Indian Administrative Service (IAS) or Indian Police Service (IPS) is entirely incongruous. At the lower level, personnel of these services require only a rudimentary knowledge of the state language while at the higher level English is used as a language of administration. Judgements of the courts are a serious business requiring a deep knowledge of the language in which court proceedings are conducted so as to arrive at a just decision.

Today the high court is the final controlling and disciplinary authority over the subordinate judiciary. If we were to have an All India Judicial Service, does that mean the disciplinary authority will shift each time a judge is transferred from one state to another? Besides, in case of the Indian Administrative Service, the authority of the central government is supreme with limited powers being vested in the state governments. But who will have the ultimate authority over the All India Judicial Service? – The Supreme Court obviously cannot bear the additional load. Will the central government by this invidious tactic claim to be the ultimate disciplinary authority? Such impingement by the executive would be the surest way to strike at the independence of the judiciary.

It is regrettable that the Chief Justices’ Conference did not decide that in the interests of continuity and familiarity with the workings of the state judiciary, a local chief justice is a must in every high court. The current practice of appointing chief justices from outside their parent courts, often for as short a period as three months or six months, has dealt a severe blow to the prestige and the harmonious working of the high courts and led to grave laxity in the supervision of the lower judiciary.

As for the uncle-nephew nexus, this is an issue that has already been successfully addressed by the chief justice of a high court who effectively enforced an order stating that cases involving judges’ relatives will not be assigned to any judge whose relatives also practise in the same high court.

Another embarrassing reflection on the judiciary is the long pending misdemeanour cases against high court judges that continue to be the subject of public debate because the Supreme Court is yet to take a final decision in this regard.

What I have said here may sound harsh but let me put in a caveat by invoking Justice Oliver Wendell Holmes of the United States Supreme Court who said, "I trust that no one will understand me to be speaking with disrespect of the law because I criticise it so freely… But one may criticise even what one reveres… and I should show less than devotion if I did not do what in me lies to improve it."