Working Towards a Healthy Democracy

By Jayanthi Natarajan

The Union government has just decided to promulgate an ordinance to increase the salary of the Chief Justice of India and other judges, at par with the recommendations made by the Sixth Pay Commission for government servants, and to substantially increase several other perks, including the funding set aside for sumptuary allowance and furniture. The ordinance also provides for increase of DA and other allowances. The legislation was introduced in the Lok Sabha on December 22, 2008. But due to paucity of time, the House was unable to pass the legislation.

Today, judges are the vital pillars holding up our democracy. With the hate campaign being perpetrated against politicians and the political class, the only institution which the people of India appear to respect is the judiciary. Thus, there can be no second opinion in the country about the terms of service of judges. The remuneration given to them should be commensurate with the exceptionally important work they do. In recent times, the judiciary has emerged as the true champion of individual rights and in many cases has indicated the constitutional direction which the government has to follow. The judiciary has shown no hesitation in intervening wherever it has believed the Constitution has been violated, or wherever it has felt the rights of citizens have to be protected.

It is, therefore, no great surprise to any political analyst that Indian citizens, despite having lost all faith in the political class, have put the judiciary on a pedestal. While many and in fact most judges are fine upstanding jurists who have devoted their lives to holding up constitutional values, it would be unhealthy to consider the judiciary the only saviours of the country.

It needs to be stated at the very outset that the judiciary is one — but not the only — pillar of our democracy. It has a job to do, and does it well. It would be myopic and counter-productive to denigrate other parts of our democracy and expect the judiciary to solve all our problems. We need to remember that our Constitution has wisely given a clear role to the executive, legislature and judiciary. It has instituted a system of checks and balances to ensure that each pillar does its job properly. In other words, it is the job of the executive to govern, the legislature to make laws and the judiciary to ensure the constitutionality of the laws passed. Judges cannot and should not make laws or govern. It is a great pity that all too often, in a frenzy of blame game, citizens and analysts completely trivialise the role played by the executive and legislature, and look to the judiciary to solve all problems. This is not just dangerous, but also a trend inimical to our democracy.

It may be useful to marshal a few facts to put things in perspective. Barring one or two well-publicised incidents, the higher judiciary has inspired the country with forward-thinking judgments which take into account the evolving needs of our people. Almost all members of the higher judiciary have unimpeachable integrity and commitment to constitutional values.

The pivotal role and exceptional credibility enjoyed by the judiciary, however, should not blind us to the nuts and bolts of their appointment and accountability. That judges require and deserve a pay raise is something every Indian will concede (although not even one of those Indians will concede that MPs too deserve a pay raise).

It is here that the Judges Inquiry Bill 2006, which was later exhaustively examined by a parliamentary committee, becomes relevant. The committee considered the mode by which judges could be regulated or judged, and deliberated upon the efficacy of the existing provisions of impeachment provided in the Constitution. The committee’s report is an invaluable discussion, which should ideally be the subject of a national debate. How judges should be appointed and how accountability of judges ought to be ensured are basic issues in a healthy polity. It would be very useful for average citizens to acquaint themselves with these issues. And, along with the provision of greater amenities for judges, it is important for Parliament to discuss and legislate the bill.

As of 2008, there are 46,374 cases pending in the Supreme Court, up by 22,145 from the year 2000. Although the number of Supreme Court judges was fixed at seven by the Constitution, this number has been increased time and again, and now stands at 25. The primary reason for the long pendency of cases is undoubtedly the increasingly higher number of cases instituted each year. Increase in the strength of the high court judges also results in more cases being decided in the lower courts and being sent up on appeal to the Supreme Court.

Further, various analyses have shown that a contributing factor to the pendency issue is the large number of holidays. Until 2006, the vacation days of the Supreme Court were 103 days a year, not including Sundays. In other words, it is one-third of the year. With effect from 2006, the court sits for 185-190 days a year from 10.30 am to 4 pm. It would greatly help the cause of justice if the judges came forward to voluntarily increase both their working hours per day as well as the number of days worked per day. After all, the most cardinal rule of any litigation is that justice delayed is justice denied.

Litigants from South India bear an intolerable burden of expenses and exertion in traveling all the way to Delhi to the Supreme Court. Several times, recommendations have been made that a bench of the top court be established in South India. Their lordships in the Supreme Court have not yet given their consent to this. The time has come yet again to strongly urge that this legitimate demand of South Indian litigants be taken seriously and a bench of the top court be established in Chennai.

The importance of a proper understanding of the systems of appointment and accountability, as also the functioning of our higher judiciary, requires the strongest possible emphasis. By any reasonable yardstick, it would not be a healthy practice for judges to be above scrutiny by any other pillar of democracy, or, more importantly, by the average citizens. I have, therefore, attempted to highlight some details pertaining to the functioning of the judiciary, and thereby join the larger debate regarding the relationship between the judiciary, legislature, executive and the voter. It is my sincere hope that the debate will deepen and wi-den, generating more awareness on this issue and thereby enrich the quality of our democracy.