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Role of the Judiciary—Boon or Bane?Author(s): SOLI J. SORABJEESource: India International Centre Quarterly, Vol. 20, No. 3 (MONSOON 1993), pp. 1-17Published by: India International CentreStable URL: http://www.jstor.org/stable/23003966 .

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LECTURE LECTURE

SOLI J. SORABJEE *

Role of the Judiciary—Boon or Bane?

An

appraisal of the role of the judiciary in our country confronts one with more than one paradox. The first is that the judiciary which is regarded as the

weakest branch of the State, because it has neither

the power of the sword nor of the purse, in effect and

reality is pretty powerful because of the impact of its decisions on

the life of a nation. Segregation in educational institutions in USA

was outlawed not by the Congress but thanks to the historic

decision in 1954 of the US Supreme Court in Brown v. Board of

Education. That judgment has been a tremendous force in the

process of dismantling what seemed the impregnable fortress of

racial discrimination.

In the Keshavanand Bharati case our Supreme Court held that

the power of amendment of the Constitution is not absolute and

cannot be exercised so as to damage the basic structure of the

Constitution, to destroy its essential features. The consequence is

that Parliament is not supreme even when it exercises its con

stituent power of amendment and the last word rests with the

Supreme Court. Its recent decision in what is popularly known as

the Mandal case and its implications are bound to affect the course

of national development, for good or for ill depending on in

dividual perceptions. Therefore, it is rather paradoxical to regard the judiciary as the weakest branch. I am reminded of the quip that

a paradox is what adults tell. When a kid does it, it is called a big lie.

Anyone familiar with the working of the Supreme Court

knows its crippling workload. It is difficult to find a public func

tionary so hard pressed as a Judge of the apex Court. The notion

^Revised version of the Tenth Dr. C.D. Deshmukh Memorial Lecture delivered

at the Centre on 14 January, 1993.



2 / India International Centre Quarterly

that a Supreme Court Judge works for only five hours a day in a

five-day week is a myth. The week-ends of the judges are not spent in rest and recreation but in wading through numerous volumes

of Special Leave Petitions (SLPs) and Writ Petitions (WPs) and

miscellaneous applications which come up for disposal every

Monday. They do not have the assistance of a law clerk. This is

indeed distressing because the strain of work is bound to and is

reflected in the quality of its judgments. Yet, paradoxical as it may

appear, our Supreme Court does manage to deliver some judg

ments, especially in the field of administrative law, which can

compare with the best in the legal world.

Yet another paradox, and a baffling one, is that despite dis

satisfaction, disillusionment almost bordering on disgust with the

laws' scandalous delays and the working of the legal system and

the judicial process, the common person still turns to the judiciary. It is the one institution in which citizens retain some faith and

which, despite all its shortcomings, is still regarded as the one

redeeming star, "the ever fixed mark" in an otherwise dark and

depressing firmament.

It is not a coincidence that whenever a Commission of Inquiry or other high-powered body is constituted for the purpose of

examining any issue of national importance, the public demand is

invariably for a sitting or a retired Supreme Court or a High Court

Judge. I am mentioning all this at the outset to prepare you for not

getting a clear-cut categorical answer to the question posed in the

title of my talk. This is not a diplomatic exercise nor a precaution

against possible contempt action but owing to the fact that our

judiciary like any human institution which has not been guaran teed the gift of infallibility, has had its ups and downs, its moments

of pride as also those which bring the blush to one's cheek.

At the outset, let us ask ourselves what role should the

judiciary play in our constitutional scheme? In addition to resolv

ing disputes between members of the community should it have

the power of judicial review in the exercise of which it can strike

down not only executive orders and decisions but also laws passed

by Parliament and legislatures and can restrict the power of

amending the Constitution? How can five or seven or nine or

thirteen or for that matter the entire Court of 24 unelected judges who are supposed to live in ivory towers quite out of tune with the



SOU J. SORABJEE / 3

urges and aspirations of the people invalidate laws passed by the

elected representatives of the people? Is this not undemocratic?

This criticism stems from a misconception of the judicial func

tion and the purpose of judicial review in our constitutional sys tem. One of the concepts embodied in our Constitution is that of a

limited government. Consequently, no authority can have absolute

power, nor can the limits of power be determined by the limited

power itself. Since our Constitution divides powers between dif

ferent bodies and also prescribes limitations on the powers of

Parliament, the State Legislatures and the executive, an impartial

umpire to resolve the inevitable disputes over the boundaries of

constitutional power which arise in the process of government is

imperative. Moreover, our Constitution has guaranteed certain

fundamental rights in Part III of the Constitution and has expressly

provided that any law which infringes any fundamental right will

be void. Thus, fundamental rights constitute a limitation on the

power of Parliament and State Legislatures. But one may well ask: Why should judges perform this role?

Are they superior beings endowed with greater intelligence or

wisdom than the members of the other branches of the State?

Certainly not. In fact, some of our legislators and administrators

are extremely able and versatile. The crux of the matter is that the

entire purpose of imposing limitations would be defeated if the

concerned Legislatures and the Executive are to be judges in their

own cause whenever the validity of their action is in question. Moreover, judges, who have no stake in the matter and who are

above the tensions and temptations of party strife are better

equipped by their training and tradition to take an objective view

of longer range than the limited period of responsibility entrusted

to the Legislature and the Executive.

This aspect of the matter was considered in the Constituent

Assembly. After a full and extensive debate our Founding Fathers

entrusted the solemn duty of enforcing the fundamental rights of

the people of India to the Supreme Court and the High Courts.

They were aware of the dangers inherent in entrusting judicial review to "five or six gentlemen sitting in the ... Supreme Court".

They were, however, prepared to take the risk because they did not

trust either the Parliament or the Legislatures to observe the dis

cipline of fundamental rights which, they apprehended, could be

steamrollered by a popular assembly swayed by the passions and




prejudices of the day. They trusted judges to exercise the judicial

power of invalidating statutes with mature self-restraint, and only in cases of patent unconstitutionality and not for giving effect to

their personal philosophy and predilections. That, at least, was the

hope and faith of the Founding Fathers.

What

were the limits to judicial review envisaged by the Founders? Specifically, was judicial review available in

cases of agrarian reforms and socio-economic legislation?

According to Nehru, the judiciary was ill-equipped for the

great task of social engineering. In substance, its role was important but limited, because "... the responsibility for the governance of

India, for the advancement of India lies on this and future Parlia

ments". To Nehru, an impatient man who was perturbed that ages had "slipped by while we are waiting", it was intolerable that

further ages should slip by as cases limped from court to court. He

did not mince words in the Constituent Assembly about what he

thought the role of the judiciary should be in these matters: "Within

limits no judge and no Supreme Court can make itself a third

chamber ... If we go wrong here and there it can point it out, but in

the ultimate analysis, where the future of the community is con

cerned, no judiciary can come in the way." After these thundering words he somewhat mellowed and added: "But we must respect the judiciary, the Supreme court and the other High Courts in the

land. As wise people, their duty is to see that in a moment of

excitement, even the representatives of the people do not go wrong;

they might. In the detached atmosphere of the court, they should

see to it that nothing is done that maybe against the Constitution."

The general consensus in the Constituent Assembly was that

in the matter of compensation for acquisition of property, and in

matters of socio-economic reforms the Courts would refrain from

interfering except in cases of a fraud on the Constitution or gross abuse of power.

What kind of persons did our Founding Fathers visualise for

the high judicial office? Nehru spoke for all when he said: "Judges should be not only first-rate but should be acknowledged to be

first-rate in the country, and of the highest integrity, if necessary,

people who can stand up against the executive government, and

whoever may come in their way."



SOLI J. SORABJEE / 5

Have these hopes and beliefs of the Founding Fathers been

fulfilled or belied? Have the incumbents of judicial office measured

up to these expectations? Has the judiciary acted as a true sentinel

on the qui vive in protecting the fundamental rights of our people? A rude shock was received in 1954 when the Supreme Court

ruled in the case of Bela Banerjee that the expression "compensa tion" in Article 31(2) required full indemnification of loss of the

owner whose property was acquired. The Court refused, either by

design—in view of the prevailing doctrine that debates could not

be referred to — or by accident, to receive illumination from the

Constituent Assembly debates on this very question. The Assembly had been assured by eminent lawyers, and in particular by K.M.

Munshi, who were mainly responsible for drafting the Constitu

tion, that the question of compensation would not be justiciable

except where it was so illusory as to be a fraud on the Constitution.

No wonder Nehru indignantly observed: "We have found that this

magnificent Constitution that we have framed was later kid

napped and purloined by the lawyers."

Despite subsequent constitutional amendments, judicial

forays in the field of acquisition and compensation continued until

Parliament desperately determined to obviate forensic battles and

judicial intervention in the matter of property rights passed the

Constitution (Forty-Fourth Amendment) Act, 1978 and deleted

property rights from the fundamental rights chapter of the Con

stitution.

It would appear that initially the programmes of land reforms

and socio-economic engineering and planning were considerably inhibited on account of apprehended judicial intervention. The

unpredictability of judicial decisions led to several constitutional amendments and gave rise to constitutional quarrels between the Court and Parliament. Our experience with fundamental rights of

property carries its own tale. In a country where there are wide

disparities of wealth and income, payment of full compensation for acquisition of property is not feasible and can hardly advance social and economic justice.

Apart from this aberrant behaviour, our judiciary on the whole

has not acted as a super legislature or as a third chamber. Socio economic legislation, like the Minimum Wages Act, the Factories

Act, the Employees' Provident Fund Act, the Slums Clearance Act, the various Rent Acts, the Payment of Bonus Act (except for one




arbitrary provision), the Maharashtra Repairs Cess Act, the Con

tract Labour Abolition Act, has been consistently upheld. In In

dustrial law, the approach rightly has been to support the

underdog rather than the employer. Courts have more often than

not negatived challenges to town planning and acquisition and

requisitioning legislation even though it severely curtailed proper

ty rights. A majority of the laws imposing restrictions on rights to

property and trade and business have been judicially upheld rather

than struck down. Statistics will establish that only a small percent

age of the laws enacted are challenged before the Courts, and out

of these, very few have been struck down as unconstitutional.

The real reason for failure of socio-economic legislation and

land reforms is the pathetic absence of political will to implement these beneficial measures. A question was specifically put by Mr

Justice H.R. Khanna in the course of the arguments advanced by Mr Niren De, the then Attorney-General. He asked him, "Mr

Attorney, can you point out a single instance after the sixties where

the judgment of a court has prevented the implementation of any socio-economic legislation or land reform?" The AG said, "I will

consider the matter and give the answer tomorrow." The answer

never came. The answer really lies in the lack of genuine desire to

implement these measures.

Injunctions are issued by courts where the authority ad

ministering the statute in question has either by omission or design flouted its mandatory requirements, like giving a previous notice.

Surely, courts cannot remain passive spectators to the commission

of an illegality because the legislation deals with land or other

reforms.

The charge that judicial review is undemocratic and judicial invalidation of laws thwarts the will of the people is based on the

fallacy that the will of the rulers and the will of the people are the

same. Actually in several cases they are at direct variance with each

other. The Constitution is the will, the deliberate will, of the people and constitutional interpretation by the Courts, as Hamilton

pointed out, does not "by any means suppose a superiority of the

judicial to the legislative power. It only supposes that the power of

the people is superior to both; and where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former."




Besides, one of the most serious problems in our democracy is to strike a balance between the rights of the majority and those

of minorities, between the rights of the present generation and

those of the future. It is not unlikely that a present majority may by its actions jeopardise the fundamental rights of minorities and

affect their future. And what are popular majorities if not volatile

aggregations that melt and reassemble, shift and change? The

Constitution was enacted advisably to channel the majority's

momentary impulses in the interest of the basic philosophy and

cardinal values of the Constitution. Upholding the fundamental

and constitutional rights of the people though at the cost of in

validating an act of Parliament that clearly violates these rights is

to discharge the function of guarding the Arc of the Constitution, no more, no less.

When a court invalidates legislation, it neither approves nor

condemns any legislative policy, nor is it concerned with its wis

dom or expediency. It merely determines whether the legislation is

in conformity with the provisions of the Constitution or in con

travention of it.

For example, if a law prohibiting consumption of alcohol is

challenged, the court is not concerned with the wisdom of the

policy underlying the legislation and it cannot invalidate the law

because, in its opinion, the evil of drink cannot be effectively tackled by legislation. But suppose the law in question dis

criminates against certain communities or classes, or the Prohibi tion Act forbids any literature in praise of the cup that cheers

ranging from Omar Khayyam to G.K. Chesterton. In such a case it

would be the court's constitutional duty to strike down the legis lation as violative of the fundamental right to equality or freedom of speech and expression. Again when legislation involving nationalisation of road transport is challenged, the individual no

tions of the justices about the policy of nationalisation are irrelevant

in deciding whether there has been a breach of any constitutional

provisions.

Have

judges maintained "the cold neutrality of an impartial judge" as was Burke's expectation? Let us be realistic.

Judges like you and me are human beings and we cannot

expect them to completely shed their predilections and pre-concep




tions. The individual tone of the mind, the colour of past ex

perience, the character and variety of interests, the socio-economic

background of the judge inevitably play a role in the decision

making process. Chief Justice Patanjali Shastri frankly acknow

ledged that "It is inevitable that the so-called social philosophy and

the scale of values of the judges should play an important part." At

the same time, he recognised that "the Constitution is not meant

only for the people of their way of thinking but for all".

Doubtless, there have been occasions when judges have read

their preferences into statutory and constitutional provisions. The

decisions of the Supreme Court in Bela Banerjee and allied cases,

that the expression "compensation" in Article 31(2) necessitated full

indemnification of loss to the owner of the property, were possibly influenced by the judges' rather exaggerated notion of property. The judgment of Chief Justice S.R. Das declaring gambling as an

immoral trade beyond the pale of constitutional protection, Justice

Kapur's view that certain advertisements for sexual disorders were

not protected by the fundamental right of free speech and Justice

Hidayatullah's decision that Lady Chatterley's Lover was "obscene", all reflect the social and moral philosophy of these judges.

Strong views for the rights of labour certainly influenced the

decisions of Justice Gajendragadkar in the field of industrial law.

Justice D.A. Desai's inveterate belief that landlords were a rapa cious lot and all tenants deserved the Court's utmost solicitude was

transparent in his judgments. The powerful dissent of Justice Subba Rao in the Gujarat University case reflects his strong views

about the rights of the States and their role in Centre-State relations.

The decision of the Supreme Court in the Bank Nationalisation

Case is frequently cited as an instance of the Court striking down

the measure because of its disapproval of the policy underlying it.

However, it can be safely affirmed that in the overwhelming

majority of cases, judges in India have not acted as knight errants

on white chargers in quest of their individual notions of justice. Cases are decided as if the parties before them were anonymous and the issues are legal and constitutional. Judges as a rule do not

intentionally take a view against their conscience or their oath, nor

do they take any cue from the sentiments of the ruling party.

By and large, judges do make a conscientious effort to

neutralise their personal beliefs and predilections. The classic state

ment of Justice Vivian Bose, in a case of preventive detention of




certain communists, aptly sums up the general judicial attitude. He

observed: "It is perhaps ironical that I should struggle to uphold these freedoms in favour of a class of person who, if rumour is to

be accredited and if the list of their activities furnished to us is a

true guide, would be the first to destroy them if they but had the

power. But I cannot allow personal predilections to sway my

judgment of the Constitution."

A cry is raised in some quarters that the Court is getting involved in political controversies and its decisions are political. Those who make this charge forget that the Constitution is, in a

sense, a political instrument. It deals with the rights of citizens, Centre-State relations, inter-State relations, governmental powers and limitations on these powers.

A perceptive Frenchman, Alexis de Tocqueville, gave an effec

tive answer to this criticism in 1833 in his classic work, Demociacy in America. He said: "Scarcely any political question arises in the

United States which is not resolved sooner or later into a judicial

question... The American judge is brought into the political arena

independently of his own will. He only judges the law because he

is obliged to judge a case. The political question which he is called

upon to resolve is connected with the interest of the parties, and he

cannot refuse to decide it without abdicating the duties of his post." Felix Frankfurter, the great American Judge, who emphasised

judicial restraint, endorsed this opinion in the fifties. These views,

though expressed in the American context, are apt and relevant

also in the Indian context.

Many election matters have a political complexion and politi cal parties are deeply involved. Disputes between States of Kar

nataka and Tamil Nadu about sharing of water are fraught with

strong political overtones. That is no reason for a court to shirk its

constitutional duty of deciding such issues on the basis of the

existing law and the provisions of the Constitution. The Court does

not thereby trespass into the political thicket.

True, political questions are those which from their very na

ture pertain to the sphere of another branch of the State and for

which judicially manageable standards are absent. For example,

questions like whether war should be declared, the strength and

composition of our armed forces, whether a particular nation

should be accorded recognition, and the like. Courts recognise their

limitations and do not pronounce upon such issues. Lord Porter,




who certainly was not an innovating judge, was of the view that

"The problem to be solved will often be not so much legal as

political, social or economic, yet it must be solved by a court of law.

For where the dispute is between Commonwealth and citizens....

it is only the court that can decide the issue. It is vain to invoke the

voice of Parliament."

Dr Rajeev Dhavan, who has done research on the Supreme Court of India, has well summed up the situation: "The Supreme Court has not been political. The Court is not controversial, but it

has unwittingly figured in inevitable controversies."

Another misconception is that the judiciary should not deal

with or touch religious matters. Again what is overlooked is that

courts in the course of adjudicating upon legal disputes between

the parties are obliged to determine questions like:

What are the usages, practices and customs of a religious denomination and whether they have acquired the binding force

of law?

Does a particular shrine or a church constitute a public

religious trust? In which case the history of a particular religious

denomination, its beliefs, practices, activities and course of conduct

in relation to the shrine or church have to be enquired into for

determination of the question of law.

Has there been a valid excommunication of a person from his

caste or religion? The act of excommunication affects the person's civil rights and therefore there has to be a judicial investigation of

the tenets and discipline of the concerned caste or religion and the

manner in which the decision was reached.

Prohibition of cow slaughter was challenged by certain Mus

lims as infringing their religious freedom guaranteed by Article 25

of the Constitution on the ground that the sacrifice of a cow is a

mandatory religious duty, an obligatory act, which has to be per formed on certain days, like Bakr Id. The Supreme Court ruled that

only the basic tenets of a religion are protected under Article 25

and the constitutional guarantee of freedom of religion does not

extend to practices which have grown up and which are not an

integral part of a religion. The Court then examined various

religious texts and other materials and repelled the constitution

al challenge. The question is not whether the decision was right or wrong. The Court in ruling upon this issue did not dabble in

religion but was considering a constitutional challenge and in



SOU J. SORABJEE / 11

the course of it, it had to decide certain issues relating to a particular

religion.

Again courts have over the years before and after inde

pendence in our country and elsewhere adjudicated issues on the

basis of scientific, technological or historical data and materials.

There is no inherent lack of competence in the judiciary to deter

mine whether a mandir was factually in existence, whether it was

demolished and a mosque was built on its site. The court with the

aid of archaeological, historical and other evidence is quite capable of determining these questions. It does so not of its own volition, but when required to do so. The wisdom and expediency of a

Presidential reference of such questions to the Supreme Court is a

different matter altogether. Have the courts been fearless judicial sentinels in protecting

the fundamental rights of our people? Whatever may be the shortcomings of our judiciary it would

be impossible to lay the charge of subservience at its door. Judges of our High Courts and the Supreme Court have not been Bacon's

"Lions under the throne". On the contrary, on occasions they have

roared so loudly and boldly that many a ministerial occupant has had to leave his throne in disgrace.

True, courts have sometimes yielded or retreated and there have been lapses, the most horrendous being the disastrous judg ment of the Supreme Court in May 1976 holding that a proven malafide detention of a person could not be challenged during emergency. But it was during the infamous June 1975 Emergency that judicial independence was seen at its best in some High Courts, some of whose judges struck down various illegal orders of detention, arbitrary decisions of the Censor, refusal to permit public meetings and the like, undeterred by the likely consequence of their transfer or supersession.

Again it must be conceded that there have been and will be

timorous judicial souls who conceive the proper judicial posture to be one of humble deference to the legislative will and who are unnerved by executive declamations about lurking dangers to uational security. But it would be wrong to conclude that the higher Indian judiciary has been weak or servile.

Let us not forget that it was a single judge of the Allahabad

High Court, Justice Jagmohan Lai Sinha, who set aside the election af the most powerful person in the country, the then Prime Mini




ster, Mrs Indira Gandhi. Again it was a single judge of the Delhi

High Court, Justice T.P.S. Chawla who when the Janata Govern

ment was in power, quashed the prosecution of Mrs Gandhi for her

failure to testify before the Shah Commission.

ne of the greatest contributions of the Supreme Court in

recent times has been the development of Public Interest

Litigation (PIL). The Court has ruled that where judicial redress is sought in respect of a legal injury or a legal wrong suffered by persons, who by reason of their poverty or disability are unable to approach the Court for enforcement of their fun

damental rights, any member of the public, acting bona fide, can

maintain an action for judicial redress. Thus the underprivileged and the downtrodden have secured access to court through the

agency of a public spirited person or an organisation. In its

landmark judgment in the Francis Coralin Mullin case the Court

declared that life in Article 21 does not merely connote physical existence but the right to life includes the right to live with human

dignity and all that goes along with it, namely, the right to the basic

necessities of life and to carry on such functions and activities as

constitute the bare minimum expression of the human personality. This unique contribution made by the Supreme Court in the

development of human rights jurisprudence has transcendental

significance especially in developing Third World countries.

The real value of judicial review and public interest litigation has been in its ready availability to the common person and par

ticularly to the exploited and the oppressed for checking executive

arbitrariness and gross violation of human rights, particularly at

lower official levels. Students capriciously refused passports, petty traders illegally deprived of licenses, government servants wrong

fully dismissed, innocent persons illegally detained, undertrials

languishing in jails for periods longer than the maximum sentence

upon conviction, workers deprived of minimum wages and mini

mum benefits consistent with human dignity, labourers held in

conditions of servitude, inmates of asylum and care homes sub

jected to utmost indignity and the countless victims of discrimina

tion are all beholden to our judiciary exercising its power of judicial review. With all its imperfections, exercise of judicial review in

India has played a significant role in maintaining the Rule of Law,




preserving the basic values of the Constitution and making fun

damental rights living realities to some segments of the population for whom the guarantee of human rights was a teasing illusion.

The Court's role in PIL has drawn severe criticism. Indignant critics charge that the judiciary has taken over the administration

and some of the orders passed by the Courts in PIL tantamount to

government by the judiciary. What these critics forget is that it is the notorious tardiness of

legislatures and the inertia, almost bordering on callousness, of the

executive branch which provide a proper occasion for judicial activism. When continued derelictions of statutory and constitu

tional obligations and gross violations of human rights by public authorities are brought to the notice of the court, it cannot refuse

to act. Unlike the executive or a legislature, the judiciary can neither

prevaricate nor procrastinate. It must respond. It is not sufficiently realised that, in all these public interest

cases, the question is of enforcement of some fundamental right. The Court is not legislating nor running the country but is merely

adopting certain operational principles and attitudes within the

framework of the Constitution. True, in some cases the judicial

pendulum has swung rather erratically and orders and directions

which have been passed are beyond the judicial sphere and do

more credit to the heart than to the head. Yet, on balance, the gains from PIL in India have been considerable. The heartening feature

is that the Supreme Court has started "taking suffering seriously". I notice signs of incredulity, a sense of amused amazement

because if the picture I have presented of the judiciary is even partly correct, pray why is there such acute dissatisfaction with it? If the

judiciary is really the protector of the citizen why is it generally

regarded as its tormentor? Alas, that is the cruelest paradox of all.

What are the factors responsible for this? More than one. The

first and foremost is the ancient ill of which Hamlet laments, "The

laws' delays". The interminable delays today have become in

tolerable, unbearable and have made a mockery of the justice

delivery system. The arrears in our courts are horrendous, shame

ful. All this has caused many a potential litigant who has been

wronged to settle out of court on terms which are unfair to him or

to secure justice by taking the law into his own hands or by recourse to a parallel mafia dominated system of justice that has sprung up. The gravity of this development cannot be underestimated.




What are the reasons for these atrocious delays? In the main

it is the present legal system which needs to be thoroughly over

hauled. Besides, there has been a litigation explosion. The Court's

dockets are overcrowded. Another factor is the frequent strikes by

lawyers and the prevailing practices of the legal profession which

have generated a vested interest in delays. Another main cause for delays is the ease with which ajourn

ments are granted at the drop of a hat and frequently to suit the

convenience of counsel despite the amendment of the Civil Proce

dure Code which is aimed at preventing adjournments. Judges are

reluctant to displease lawyers who retain, not return, their briefs

and are busy earning in some other courts and therefore want an

adjournment and which, to the anguish of the litigant, is graciously

granted. At present applications for adjournments are made in the

apex court on grounds which would have been unthinkable before

and which, if made, would have met with a thundering rejection.

Today adjournments are the order of the day. This practice must

stop even though it may make the judge unpopular. Judges are not

participating in a popularity contest.

Another contributory factor is the delay by the government in

making appointments in judicial vacancies which are known well

in advance. Today there are several unfilled vacancies in the High Courts which are not working to the sanctioned strength. This

pernicious practice must end and, if necessary, a constitutional

amendment may be made which provides for filling up a judicial

vacancy within a stated time.

Added to all these is the undue extension of the special leave

jurisdiction of the Supreme Court under Article 136. According to

the clear intention of the Founding Fathers and judgments of the

apex Court special leave should be granted only in cases where

there is a substantial question of law or an issue of general public

importance or in case of manifest miscarriage of justice. Yet today the Court is spending hours in hearing matters like applications for maintenance and alimony, appointment of receiver and grant of injunctions, the amount ordered to be deposited in a summary suit and a host of similar miscellaneous matters which are not

meant for the Supreme Court at all. No mechanism has yet been

devised for screening of cases. The proposal of the Law Commis

sion to have a Constitution Bench within the Court, which is




separate from the Appellate Division, requires serious considera

tion.

The reason for this phenomenon is not the Court's hunger for

jurisdiction. Indeed the Court would be glad to be relieved of the

burden of SLPs. The fact is that some orders and judgments of the

High Courts are so pathetic that the Supreme Court in its desire to

right every wrong forgets that it is not a third appellate court and

that in the majority of cases there must be finality at the High Court

level. Now therein lies the rub. The root of the trouble lies in the

quality of appointments made in the High Courts which are

responsible for the shoddy quality of judgments. It is a notorious fact that in some cases integrity and ability

which should be the criteria for appointment have taken a back seat

and are subordinated to political and other extraneous considera

tions. Judgeships are not bounties for political services. Gratitude

is a virtue and if the government wants to reward loyalists, make

them Managing Directors of some company or some public sector

undertaking, or appoint them as Ambassadors. But for God's sake, do not tinker with judicial institutions. In some High Courts,

lawyers who have been appointed judges had hardly any practice or experience in the High Court and their incomes did not cross

the exemption limit under the Income Tax Act. The tragic part is

not that the mediocre are appointed, but that the meritorious are

excluded because the proposed appointee happens to be the son

in-law or the uncle or the nephew of someone who is a critic of the

government. A high powered judicial commission is the need of the hour.

There also should be more transparency and openness in the

process of appointment of judges in the High Courts and also in

the Supreme Court.

One way in which the problem of arrears can be minimised is

by senior lawyers voluntarily agreeing to serve for six months or a

year as honorary ad hoc judges in the subordinate courts. I think

it will help to some extent because the real backlog is in the

subordinate judiciary. Besides many undesirable practices are

prevalent there. If persons who are known to have refused High Court and Supreme Court judgeship serve in the subordinate

judiciary, its tone will certainly improve apart from expeditious

disposal of cases.




The Supreme Court can also help to reduce arrears of criminal

appeals by constituting a bench of two judges who may sit by rotation and dispose of old pending criminal appeals during the

long summer vacation. To my mind, it is shocking that a man has

to languish in jail for eight to ten years for no fault of his except that he cannot afford to have bail and because the Supreme Court

has not got the time to hear his appeal. Ultimately when he is

acquitted who is going to compensate him for the slice of his life

which has been cut off? I do appeal to the judges of the apex Court

to set this good example which, no doubt, will influence the High Courts. I understand this salutory practice was adjusted in the

Andhra Pradesh and Madhya Pradesh High Courts.

The judiciary must maintain its authority and dignity by ensur

ing full compliance with its orders. Contempt power no doubt is to be

sparingly exercised. But reluctance or hesitation to exercise it in the

face of defiance especially by high functionaries like a Speaker or a

Chief Minister sends wrong signals and conveys a wrong message.

Judges must not only be independent but seen and perceived to be so.

During British days Chief Justice West of the Bombay High Court

locked up the High Court and refused to open it till the government officials carried out the Court's order. The spirit underlying that action

is commendable though one may disagree with the form.

The most potent cause for public disillusionment and lack of

confidence in the judiciary is its suspicion of lack of judicial in

tegrity. Three decades ago allegations which are made today about

some holders of the high judicial office would have been dismissed

as the demented rantings of a disgruntled litigant. Today they

engage serious attention and call for strict and urgent measures.

True or false, the persistence of these allegations tends to under

mine the prestige and dignity of the judge in question, of the Court

as a whole and of our justice system itself.

The Bar has a very important role to play in rooting out judicial

corruption. Remember that no judge can successfully reap the

fruits of corruption without the active collaboration of lawyers. The

Bar owes it to itself, to the judiciary and to the people to hound out

such corrupt members from its midst. Its silence or acquiescence cannot be rationalised on grounds of close friendship or so-called

damage to the institution. More important, if the allegations

against a judge are part of a motivated campaign, that too should

be exposed in fairness to the judge and in the larger interest of the



SOU J. SORABJEE / 17

institution. An effective and expeditious mechanism to deal with

judicial misconduct in lieu of the present cumbersome process of

impeachment is imperative. We Indians have short memories and forget easily. We may

overlook erroneous judgments, tolerate mediocre and pompous

judges, bear with hasty judges and garrulous judges but we will

not and should not forgive corrupt judges and those who aid and

abet them. If we do not remove these rotten eggs whose presence however small, pollutes the entire institution, someone may im

prove upon Shakespeare's dramatic flourish, "The first we shall do

is to kill all lawyers" and include judges also in that ominous

resolve.

It is not suggested that the judiciary is an institution which has

reached its nadir at which so many of our democratic institutions

today find themselves. Nor should anyone carry the wrong impres sion that the judiciary as a whole has become corrupt. That would

be most unfair to the vast majority of judges who are discharging their judicial functions honestly and conscientiously under heavy

pressure of work. But it is undeniable that the public image of the

judiciary has been tarnished. The undesirable trends which I have

indicated must be arrested and eliminated. It cannot be overem

phasised that a judge like Caesar's wife must be above suspicion and judges have to present a continuous aspect of dignity and

detachment. What is needed is collective judicial leadership at the

apex Court and setting of examples which will improve the public

image of the judiciary and restore its confidence.

Looking over the years since we made our tryst, with destiny, it can be said that on balance the judiciary has been a boon despite the baneful effects of some of its judgments, the occasional aberra

tions of the judicial process and the rare lapses of some judges. Our

judiciary has upheld the Rule of Law, sustained our constitutional

values and preserved us from despotism. And, God willing, it will

yet preserve us if we, despite our indignation and impatience, value it rightly and support it firmly.



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