Originally Published 2010-08-25 00:00:00 Published on Aug 25, 2010
The solution is simple in concept but difficult to implement. Judicial administration will have to be separated from the administration of justice. A separate class of court administrators, reporting to the presiding officer but not having to take orders from him, may have to be formed.
'Administration of Justice' and Judicial Administration
It has become ritualistic, if not fashionable, for politicians and other public persona to talk about ‘judicial accountability’ every time the President appoints Justices to the Supreme Court and various High Courts in the country. With the delays in such appointments accounted for and those named getting sworn in, the discourse is replaced by more sensational sleaze talk in town.

Lately, however, Union Law Minister M Veerappa Moily has presented himself as an advocate for judicial accountability. Others too, often citing instances and incidents, and also various reports of the Law Commission, have been arguing the case – all without wanting to cross the Rubicon, or not wanting to be seen as doing so.

If justice has to be done, and also seem to be done, there is this need for the political class to hold back the fire. Otherwise, there are chances of judges and the judiciary being influenced by the Government of the day, or being seen as doing so. Any no-holds-barred criticism of the judiciary, the high priest of democracy and democratic institutions, can only lead to political and constitutional chaos.

It all started in the Seventies when we had ministers like the late Mohan Kumaramangalm who championed the cause of ‘committed judiciary’.  Though he was referring to a judiciary that was committed to the cause of ‘Democratic Socialism’, which was the touchstone of the nation’s socio-development model at that time, it came to be seen as  judiciary that was ‘committed’  to the cause and interest of the Government of the day and those who headed it.

It was thus that ‘Democratic Socialism’ came to be inserted into the Preamble of the Constitution through the infamous Forty-second Amendment.  Post-91, it remains only in the Constitution. Democracy remains but Socialism has been consumed to the dust-bin of contemporary history, where ‘Market Economy’ is the mantra for political righteousness.

It is another matter that ‘Democratic Socialism’ is returning with a vengeance in terms of the influence that the social sector has on our electoral democracy. Successive Governments, both at the Centre and in the States, even while talking about economic reforms, have re-worked their priorities to suit the social sector needs and demands. ‘Freebies’ is not a bad word any more for the political class though sections of the corporate community and ‘liberal economists’ have difficulties acknowledging the ground realities, which is as much societal as electoral.

Paramountcy vs Consistency

It is in this background that a new look needs to be given to ‘judicial accountability’ – and separate functionality from concepts. It is not just about the administration of justice in the country, where the paramountcy of the existing judicial system needs to be reiterated at every turn. But there is also a need for judicial consistency in approach and attitudes.

Gone are the days when one could hope and rely on past precedents to hold his case in any court in the country. While it is not abnormal for two or more Judges constituting a Bench differing on questions of law,  there is this impossible position of courts in the country putting off politically sensitive cases to another day and another generation, if only to ensure that they did not interfere with the existing schemes elsewhere.

The ‘Tamil Nadu reservations case’ and the ‘Bhopal gas-leak case’ are only two of them.  In the ‘Ayodhya case’, the ownership issue has been languishing in the Apex Court for decades. The criminal case pertaining to demolition has not progressed, either.  In between, you had the judiciary striking down L K Advani’s name from the list of accused in the demolition case. Also, a higher court strike out his name from the ‘Jain hawala case’ before a trial court had given its findings on the facts and circumstances of the case.

In the Seventies, we had a remand magistrate letting off Indira Gandhi, likewise, after the Janata Party Government had her arrested on specific charges. The magistrate had relied on the ‘Case Diary’ of the investigating officer, to rule that the entries – or, absence or lack of them – did not justify Mrs Gandhi’s arrest. One only hoped that presiding officers across the country had followed the precedent in this case since then.

Telephone-usage and carpet-purchase

It does not stop there, though. There is growing confusion about ‘judicial administration’ and ‘administration of justice’. The case of Justice V Ramaswamy, the only one whose impeachment was voted in Parliament – and voted out, too – showed how a highly-placed judicial officer could blot his copy-book through indiscretion, if not worse. Petty accounting problems, flowing from alleged abuse of official facilities on telephone-usage and carpet-purchases, had done him in.

Independent of the facts and circumstances of this case, it needs to be understood that judicial officers may be the best when it comes to dispensation and administration of justice.  They could also be among the worst in terms of judicial administration – of, the court premises, its upkeep and account-keeping.

It is true that courts, from Supreme Court downwards, have other officials in charge of administration and accounting. But they report to the presiding officer from the judiciary, and take orders from him, too. It is yet another colonial heritage that was designed for a particular era, but we have been mindlessly following the same without question.

By training and profession, lawyers are not the best of people to run the best of offices in town – unless they form part of a corporate entity, which is yet to take deep roots in this country. Most often than not, they run slip-shod law offices in terms of daily routine and administration, their focus entirely devoted to the case on hand, and the legal issues that they would have to tackle, day in and day out. All our judges come from such a background, at one stage or the other.

In most other professions, we have independent administrators facilitating the processes that are involved in the dispensation of the primary duties of the institutions concerned. Thus, you have hospital superintendents/administrators in charge of day-to-day running of medical institutions while the Medical Superintendent and his team could devote all their time to their professed field of specialisation.

If judges thus are expected to spare their valuable time from the administration of justice to judicial administration – from sanctioning leave to attending to civil repair works as a part of their daily routine – the quality of their work would suffer. Then, you would also have cases of subordinate officials not being in a position to ‘correct’ them if they were to err on telephone-usage or carpet-purchase.

In such cases, judicial authority over-rides judicial accountability. Not only individuals but also institutions suffer the consequences of bad publicity, which all of us can do without.  India as a nation of ‘independent judiciary’ suffers even more.

Case for ‘court administrators’

The solution is simple in concept but difficult to implement.  Judicial administration will have to be separated from the administration of justice. A separate class of court administrators, reporting to the presiding officer but not having to take orders from him, may have to be formed. Governmental practices of accounting and accountability, independent of the whims of the presiding officer, may have to be instituted and/or reiterated.

The resistance could come well from within – the judiciary, that is. Having run their law offices they had wanted – or, not wanted – many judges, now or later, may want the courts to be run without ‘administrative interference’, in terms of political pressures that they were supposed to be without. A via media will have to be found, and it may be for the higher judiciary to initiate the process, with the Government aiding the discourse and finding a solution that would not hurt not only the independence of the judiciary but also the image of the judiciary.

(The author is a Senior Fellow at Observer Research Foundation)
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N. Sathiya Moorthy

N. Sathiya Moorthy

N. Sathiya Moorthy is a policy analyst and commentator based in Chennai.

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