INDIA: Judiciary must introspect

| A Statement by the Asian Human Rights Commission
The Supreme Court of India has over the years adopted a very aggressive nationalistic posture in deciding international arbitration disputes, and is an outlier in this arena. File photo of the Hindu
( February 03, Hong Kong, Sri Lanka Guardian) The Asian Human Rights Commission (AHRC) appreciates the decision made by the Supreme Court of India, that set a timeframe for governments to sanction or refuse prosecution of public officers accused of offences punishable under Section 19 of the Prevention of Corruption Act, 1988. The Court has held that the governments should decide whether to sanction or dismiss a prosecution within three months from the date of filing of an application. In an occasion where the governments require advice before deciding a sanction petition, the period prescribed may extend to four months. The judgment will go a long way in preventing abuse of authority by the governments in the country, where the practice so far is to stall the proceedings, by not deciding upon a sanction petition.
The complete text of the judgment in Dr. Subramanian Swamy, appellant and Dr. Manmohan Singh and others, respondents is available here.
In India however, it is just not the governments that stall proceedings in courts. An equally important impediment is the court itself. The country’s judiciary is notorious for its delays, probably the worst in the democratic world. Courts taking a decade or more to decide cases are not rare in India, but a common concern. The country’s judiciary has not shown any interest to streamline and modernise its logistics, particularly concerning case management. Judges undergo no training on efficient case management. It is still the practice that cases are called in courts, just to be adjourned to another date, than for any other proceedings. A large number of judges and a considerable number of lawyers are experts in adjourning cases than concluding them. This has led to a situation where genuine litigants are increasingly shying away from courts and seeking private remedies, including the hiring of thugs to settle matters outside the courts. The judiciary also suffer from the lack of appointments of judges and other administrative staff. Even the Supreme Court is no exception to this.
In such a condition, setting time limits for the governments must pose a moral dilemma as to how long would then they take to decide cases? In India there is no reasonable standard set on this so far. Nor has anyone dared to take the issue up with the courts. Perhaps it is also due to fear since the Indian judiciary is immaturely intolerant to criticism. Concerning public criticism, the country’s judiciary is a tyrant, and one of the least democratic.
A similar immaturity is visible in the extraordinary effort taken by the Court to exclude responsibility of the first respondent in the case, Dr. Manmohan Singh. The Court has elaborated, to exempt the Prime Minister from responsibility for delaying the decision to prosecute a corrupt minister, who on the face of records has caused millions of loss to the exchequer.
In paragraph 33 of the judgment authored by Justice Asok Kumar Ganguly, the Court says “[b]y the very nature of the office held by him, respondent No. 1 is not expected to personally look into the minute details of each and every case placed before him and has to depend on his advisers and other officers. Unfortunately, those who were expected to give proper advice to respondent No. 1 and place full facts and legal position before him failed to do so. We have no doubt that if respondent No.1 had been apprised of the true factual and legal position regarding the representation made by the appellant, he would have surely taken appropriate decision and would not have allowed the matter to linger for a period of more than one year.”
The court faulted by making such an observation concerning the integrity of the Prime Minister, based on assumptions. The poorly reasoned observation, that ‘had the Prime Minister received proper advice, then he would have taken appropriate action’ could be held as an example of how an otherwise reasoned out judgment could loose its probity. The role played by the respondents in the case is for an investigative agency to uncover, though there is no investigation against the Prime Minister at the moment. It is trite to argue that impartiality is fundamental in adjudicative process.
One may also argue that how could the Prime Minister’s office be ‘whitewashed’ clean from its responsibilities. There is no argument as to the fact that the disgraced minister in question Mr. A Raja served in the cabinet headed by the Prime Minister. In an equal vein, how could the Prime Minister escape responsibility as the head of office, for errors committed by his staff members, the conduct of which the Prime Minister is directly answerable?
The issue in question for which permission to prosecute was sought is not about a mistake in an office document or a minor procedural irregularity. It was concerning an issue, which is front-page news in almost all national media then and now. The application for sanction to prosecute is concerning an action of a subordinate minister who had ignored the Prime Minister’s direct request concerning the controversial licensing deals. It was on an issue in which the Union Finance Ministry had expressed concerns about, and had requested the disgraced minister not to continue with and review before proceeding. It is an issue in which the exchequer has allegedly lost an estimated Rupees 176,645 Crore according to the Comptroller and Auditor General of India. It is a question regarding transparency in government conduct, which the government should answer, no matter when the questionable policy of ‘first come first served’ was first practiced concerning the controversial licensing exercise.
Despite all this that the Prime Minister’s office pretended to be acting on the petition, without deciding on it shows the paucity of administrative transparency in the country and exposes the despicable tendency of political dependency of governments to coalition partners, compromising public trust and accountability, which the Supreme Court condoned in a few lines, of which in fact it had no business.
Defending the Prime Minister’s office is for the respondent’s lawyer to do or for a politician in the ruling coalition to embark upon. The Court assuming that responsibility is pathetic. One cannot find fault with those who argue that independence is a phantom limb of India’s judiciary.
Of many other important issues that the Prime Minister may have to decide at the office, the sanction to prosecute as requested by the appellant in the case was ‘the’ issue in which Dr. Manmohan Singh as the Prime Minister should have had serious interest. At stake was the integrity of the government that he leads. Perhaps, it is not that the court is oblivious about this, but rather was firing an unnecessary shot ahead of investigation. This is how many jurists reduce themselves to be just mediocre judges and why only a select few command public respect by being exceptional in their intellect and integrity.
The country is going through one of the toughest and a transitional point in its post-independence history. These are the times when persons of integrity and intellect at command could propel the country from a post-colonial ‘sorry state’ into a mature and thriving democracy. These are extraordinary times for India and for the world. And it is at this moment the country cannot afford average intellect at the highest offices. The country and its people disserve better.
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Bijo Francis
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Author: Sri Lanka Guardian

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