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Book Review
Is the judiciary accountable?
N. R. MADHAVA MENON
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Judiciary itself is unaccountable for the delay, arrears, and consequent denial of justice
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THE JUDICIARY AND GOVERNANCE IN INDIA: Madhav Godbole; Rupa & Co., 7/16, Ansari Road, Daryaganj, New Delhi-110002. Rs. 795.
Much has been written on judicial activism and the conflicts it generated between the judiciary and the other two wings of government. Critics have particularly questioned the total re-writing by the Supreme Court of the Constitution through its interpretation of Parliament’s power to amend the Constitution and of the Executive’s authority over judicial appointments. Exercising the power of judicial review, governments are kept under check.
At the same time, judiciary itself continues to be unaccountable for the delay, arrears, and consequent denial of access to justice to millions of citizens. It is this phenomenon the author analyses in this interesting study.. He does not agree with Alexander Hamilton that judiciary was the least dangerous branch of government and argues that “in India it is the most powerful and feared organ of the State.”
Balance
The book is written on the premise that the Indian Judiciary, the most powerful in the world, is involved in executive governance on many important matters. It explains how this happened and wants some balance among all the three branches to ensure democratic accountability in the system.
With rare historical insight and based on impressions and empirical evidence, the author analyses the growth of the Supreme Court’s jurisdiction with reference to the interpretation of provisions relating to imposition of President’s rule in States, the exercise of judicial review of legislations, the enunciation of the ‘basic structure’ doctrine, appointments to the higher judiciary, resolution of inter-State and Centre-State disputes, the fundamental right to life and liberty and environmental protection.
The Court showed readiness to entertain petitions on socially and politically sensitive issues which the elected governments were reluctant to deal with. However, in doing so, it has unwittingly taken over policy-making functions on a number of subjects such as inter-linking of rivers, control of noise pollution in cities, compulsory registration of marriages, how to check sexual harassment at work places, etc. The intervention of the court in the Gujarat communal riot cases, the Taj Corridor case, the Hawala case, etc., made it not only a powerful institution but also a much feared one, argues the writer.
Mr. Godbole thinks that while judicial activism in the interpretation of the Constitution and the laws is a legitimate function of the judiciary, its application to Public Interest Litigation (PIL) is questionable. Discussing the origin and evolution of PIL jurisdiction on the basis of case studies and a survey, he notes that until 1990 the apparent objective of PIL was ameliorating the lot of the poor and the deprived sections of society. Later on, environment, good governance, and the quality of life became the hobby horses of the courts. The author contends that even today there are no cogent reasons or criteria for admission or rejection of PIL petitions and it depends on the presiding judge and his predilections.
Reforms
The last two chapters examine the prospects of judicial reforms aimed at striking a balance between independence and accountability. The lack of a judicial data base on matters such as listing of cases, adjournments, management of witnesses, stay orders, length of arguments, delay in pronouncing judgements etc. has been a major stumbling block to formulating reform strategies. Mounting arrears, perjury and falsification of evidence, and the absence of a clear policy on litigation by the state (the biggest litigator at all levels) are among the serious problems plaguing the judicial system. Things are allowed to drift with very little concern for the litigant public. In all these, the role of the legal profession is not even debated.
Independence
The author rightly asks whether the Law Commission is only a show-piece, as its reports have had very little impact on the system. While supporting the case for increased budgetary allocation for the judiciary, he wants it to be conditional upon the judiciary implementing systemic reforms to make justice delivery cost-effective and prompt. While acknowledging the need to ensure the independence of the judiciary, the author argues that the danger to independence is much more from within than from outside.
The Supreme Court, which has been so insistent on having the upper hand in matters pertaining to the appointment and transfer of judges, has shown no inclination to take notice of the impact the practice of taking government assignments post-retirement has had on judicial independence. He favours the setting up of a National Judicial Commission to take care of the appointments, promotions and transfers of judges and a National Judicial Council for looking into cases of deviant behaviour of judges.
As claimed by the author, the book indeed is reflective of the disillusionment with the judicial system of the main stakeholders, civil society. Being a former Union Home Secretary, Madhav Godbole commands a wealth of knowledge about governmental functioning vis-À-vis the judiciary and his deep insights are reflected in every chapter of the book.
His extensive research on a wide variety of issues concerning the judiciary and his interaction with leading minds in the legal world have made the book a valuable tool for further research in judicial reform.
By all standards, the book is a valuable addition to judicial literature and an indispensable tool for students, researchers, and reformers involved in developing a better judicial system for the country.
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