Judge No Judge

The author adds his voice of reason to the strident debate on the pros and cons of the Lokpal bill. The author argues that while the proposal to bring the judiciary under the scrutiny of the Lokpal is well-intentioned, it will adversely affect the fearlessness and independence of the judiciary and have disastrous consequences. Instead, the author suggests measures to curb corruption in the judiciary.

In India common citizens have full faith in the Judiciary, but their objection is against the Judiciary is delay in justice delivery system. Therefore, one need to take remedial measures to reduce the pendency of cases before various Courts. Mere introduction of Lokpal Bill may not have much impact on the present system. According to me, the legislature alone is responsible for delay in justice delivery system, because they have not increased the strength of judges and have also not been filling up the vacancy of Judges.

Those, who attack the judiciary, must remember that they are attacking an institution which is indispensable for the survival of the rule of law but which has no means of defending itself. In the very nature of things it cannot engage itself in an open war, nor indulge in releasing contradictions

Hon’ble Mr. Justice F. M. Kalifulla, Acting Chief Justice of Jammu and Kashmir, while addressing the seminar on mediation orientation programme on 5th June 2011 said There is need for 1500, High Court Judges and 20,000 judges in the subordinate Courts to clear the rising pendency of cases in various courts of the country”. Our Country needs as on today at least 6750 more judges to clear the pendency of cases, however, nobody is addressing this issue. If these two factors are taken care of, automatically the pendency will reduce and the citizens will get speedy justice. In revenue matters 70% litigations are at the instance of Government, mainly because, nobody would like to take the responsibility. Today, the judges are able to take the decision without any fear or favour mainly because they are protected under the Constitution of India. If their action is questioned due to some allegations made by people having some vested interest, it will affect justice delivery system. When certain allegations are made against judicial officers they cannot rush to the press, they cannot give any statement in their defense, where as the Government officials and ministers and Prime Minister can give press release and public statement etc. In M. R. Parashar vs. Dr. Farooq Abdullah AIR 1984 SC 615 while dealing with contempt proceedings the then Chief Justice of India Mr. Y. V. Chandrachud stated as under:-

We would like to remind those who criticise the Judiciary that it has no forum from which to defend itself. The legislature can act in defence of itself from the floor of the House. It enjoys privileges which are beyond reach of law. The executive is all powerful and ample resources and media at its command to explain its actions and, if need be, to counter attack. Those, who attack the judiciary, must remember that they are attacking an institution which is indispensable for the survival of the rule of law but which has no means of defending itself. In the very nature of things it cannot engage itself in an open war, nor indulge in releasing contradictions. The sword of Justice is in the hands of Goddess of Justice, not in the hands of mortal judges. Therefore, Judges must receive the due protection of law from unfounded attacks on their character

Corruption is a cancer eating into the roots of the society. It is difficult to fight against corruption because the chances of success are bleak but this is no reason for despondency. Nobody is born corrupt; it is the vitiated atmosphere in the society and the system of governance which converts the clean into the corrupt

Judicial independence is back bone to preserve the mandate of Constitution of India. If there is any interference, it will have greater impact on the democracy. Bringing Judiciary within the scope of Lokpal Bill may be against basic structure of Constitution of India and it will be a black day in the Indian history, because it will affect the independence of the entire judicial process. I am of the firm opinion that Judiciary should be outside the purview of the Lokpal Bill.

I make an appeal to the professionals and professional organizations who are in favour of Judicial independence to make an appeal to the drafting committee not to include the Judiciary in the proposed Lokpal Bill. There can be more transparency in the selection process of Judges within the present system itself.

As regards corruption, Hon’ble Mr. Justice R. C. Lahoti, Former Chief Justice of India while addressing a conference on 7th September 2002 at Jaipur on the issue of Corruption, stated as under:-

Kautilya says in Arthashastra — “To know if government officials handling the treasury are stealing public money or not is as difficult to detect as whether a fish is drinking water or not. The collection of’ incidents of corruption from several news reports highlights features of corruption in revenue: (i) there is a sudden spurt in instances of corruption (ii) the corruption is showing its origin at the top and percolating downwards (iii) there is a tendency to protect the corrupt and hound the honest (iv) excepting highlighting the issue in media there is no revolt nor remedial steps taken against corruption; people are getting used to corruption as a necessary evil of the system or a ‘part of life’. I am amazed at the patience of Indian people who endure injustice and unfairness with servility and resignation. We bear the torture of the laws and fatality of corruption and endure ourselves in such circumstances which would lead to bloody revolution in any other polity. Corruption is a cancer eating into the roots of the society. It is difficult to fight against corruption because the chances of success are bleak but this is no reason for despondency. Nobody is born corrupt; it is the vitiated atmosphere in the society and the system of governance which converts the clean into the corrupt. An honest person resists corruption but allurements and temptations at times prevail upon him and once corrupt, even an honest person prefers and finds it convenient to stay corrupt. The seeds of corruption are sown in the mind of the man and the cure, if any, lies in eradicating the seeds of corruption from his mind. An honest revenue official says “The honest are hounded; they are humiliated; they are ignored; they are manipulated: they are used, they are punished; they become the laughing stock in society and in their families: even their very honesty is suspected. In spite of that, there are many honest officers in the department who remain honest against all adversities. They are a special species; they have to be preserved and protected

Hon’ble Justice Lahoti gave more than 25 instances of corruption based on the paper reports which was published in a span of six months. Though more than 10 years have passed, nobody knows the fate of all these cases. If the Government had taken some remedial measures on the basis of speech delivered by the then Chief Justice of India, possibly we could have avoided all the present episodes which have   taken place in the last few months. As there is no speedy disposal of cases there is no impact on the corrupt people. Even the media has not played any role to find out what is the fate of all these cases. Therefore, the proposed Lokpal Bill must provide that all the cases relating to corruption must be heard and disposed of within one year. This is possible if there is increase in the number of Judges constituting the Courts. Unless the Government appoints the required number of judges, it is impossible for the judiciary to dispose off the pending cases. I am of the opinion that before bringing the Act, appoint new judges and create infrastructure and environment which will enable the courts to quickly dispose off the matters pending in Courts. If the assessees are able to get the finality to the assessment at least within two years of assessment, I am sure many assessees will not indulge in unethical practice and will prefer to fight the matter in Courts.

Former President of India Dr. A.P.J. Abdul Kalam said Establishing a corruption-free India is a major challenge. I propose a youth brigade as the solution. ‘I can do it…We can do it; India will do it, should be the spirit,” 

War is fought against enemy country, where as in corruption one has to fight against own people. It is not so easy, however, let us make an honest attempt to have corruption free India.

I am of the opinion that the intellectuals and professional organizations must study the Lokpal Bill and should send their suggestions objectively, so that the Bill can serve the desired objectives. My suggestions are as under:-

(1) Judiciary should be outside the purview of Lokpal Bill.

(2) As per Clause 12, any person other than a public servant can make a memorandum of complaint to the Lokpal. I am of the opinion even public servants should also be given liberty to make a memorandum of complaint e.g. Some body may approach the public servant with the favour, the public servant in an appropriate case may refer the matter to Lokpal.

(3) On making enquiry if the memorandum is held to be without any basis and with the intention to bring discredit to the reputation of particular person or institution the person who makes the memorandum must be held guilty and must be made punishable.

(4) There has to be specific provision to deal with contempt proceedings with the Lok Pal.

I do appreciate the concern of Civil liberty but merely bringing law is not the solution, rather providing required infrastructure and facilities so that there can be effective justice delivery system, is what is required.

We are having finest judges whose integrity is beyond reasonable doubt and they are following the mandate of Constitution of India and deciding the matters without any fear or favour. I, therefore, appeal to the professionals to send suggestions to the proposed Committee urging them not to include judiciary in the proposed Bill.     

Jai hind



Reproduced with permission from the AIFTP Journal, June 2011

5 comments on “Judge No Judge
  1. CA UMA KOTHARI says:

    A major and natural reason of corruption is god made greed in human being. When one want to gain easily and want to make more wealth by lesser efforts, the corruption may take place. If greed is not controlled, it can cause corruption. Greed to make money, get power, get work done easily etc. are natural reasons for corruption.Therefore, check on greed is necessary, and for that parents should guide children to keep check on greed right from early childhood.
    In government departments, a check on power to harass and check on wrongs done or action not taken on time is necessary. However, unfortunately the policy of regularizing wrong acts, in actions, omissions to act or delayed actions by making amendment in law and that too many time with retrospective effect is very unfortunate.
    Why the public servant should not be made responsible for his omissions to act or delayed actions and why his omissions or delayed actions should be regularized and as a consequence the public should suffer? If this trend continues the approach of ‘who care ‘ shall continue in government departments and this will lead to corruption.


    Main reasons of corruption in government, at operational levels are”POWERS TO HARRASS” AND “NON ACCOUNTABILITY OF WRONG ACTIONS DONE OR DELAYED ACTIONS” BY GOVERNMENT OFFICERS.

    No government officer want to take a risk of his service, therefore, there is no case of government officers giving undue or illegal benefits. But they are not accountable for unjust, wrong, and illegal actions – by such actions they can make your life difficult.
    This is about operational level corruption. At higher level where policies can be modified, there are corruption to give benefits also. Government intervention should be reduced to reduce corruption.
    In judicial system- the processes and procedures should be modified, the petitioner must submit all documents and copy of evidences with petition with a copy to respondent. Respondent should be allowed to file cross documents within limited time, Any document opposed must be specified otherwise evidence furnished by petitioner should be accepted.and then cases should be disposed off in a quick manner without much adjournments. There should not be wastage of time of court on many un-necessary processes about admitted facts by parties. Many advocates have practice of making processes lengthy and time consuming, the courts must come heavily on such advocates. In fact on consideration of many cases of different type I question that whether courts are meant for dishonest persons? And in most of cases the answer is YES, because dishonest persons can drag their matters for a long period of time.
    This need to be changed.

  3. jai rao says:

    Gentlemen, repeated kudos to Dr. S. What is utterly befuddling — is a nominee today, handling the Home portfolio, say, suddenly is given finance or any other portfolio — just like that. No one considers the background of these nominees whether they are capable of ‘handling the job’. Wont the average questioning mind see the blatant discrepancy?? Do they have even have a nuance of a background vis-a-vis their portfolio? Classically illustrated in support; over decades M. Benz in Germany without exception opted for a mechanical engineer as the man in the company’s ‘driver’s seat’. Is it a surprise that they built the finest cars and hence met their objective of generating respectable revenue? I’m sorry to vent like this; the present HRD personality is saturated with himself and glib as ever utterly bereft of content; the man in the ‘veshti’ is no less incompetent than the one time governor (MIT) who today is handling Foreign Affairs; giving away our depleting resources. Dr. S., I have been following your comments now for sometime and with admiration; true, this is essentially a litany of lament. Perhaps with your experience, if you agree with my principle, a methodology, a workable system — right man for the right job. Regards to your team.
    Incidently, couldn’t agree with you more and J. C’chud & J. Lahoti; especially leaving the judiciary out of the ambit of the Lokpal for reasons elucidated.

  4. Nem Singh says:

    Respectable Brothers,
    Your views are totally against the principal of legal profession. Why you do appeal for judges, why not to do support Lokpal as unity. Under the constitution each and every one equal then why should out Judges from Lokpal. If the Judiciary is fully accounatable then no fear if it is not accounatable then fear.

    In my opinion, there is no fear for the person who are true no boundation on their working condition their accountability never doubtable they are free do work without any pressor then why we the professionals fear from taking Judges under Lokpal. We the professionals who propose judiciary to something wrong for cash. If We are true and fight always in right way then we have no fear.

  5. Covaisiva says:

    Dear sir,
    I have viewed your comments. No public servant is ready to take responsibility since there may not be clear cut responsibilities assigned. Most of the public servants in India slowly became the sorry to say servants of the Politicians. They perform duties as directed and assigned by the people in Power. Hence before implementing Lokpal bill the duties of every public servants must be clearly defined together with accountability. This could only make them to perform their duties as defined. Otherwise good people who act honestly may also seriously affected merely by a false complaint.
    As regards delay in Judgements, there should be a time defined time frame for each kind of cases. No body either complaintant or plaintiff should be allowed to carry the case beyond the time frame. Similaryly delivered Judgement should be an speaking order by itself strictly in line with concerned Law. We can see a case related to a former CM which is a good example for how long can a case be dragged even on petty matters( pitty to note that the case hearing conducted on an order of Supreme Court).
    Please not I am not a lawyer.

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