Years ago, I had a colleague in a development financial institution who clearly did not have his heart on the job. While chatting with him one day, I found out that he was a former judge in a muffasil town in Madhya Pradesh. One evening, just before the judgment day on an open-and-shut family land dispute murder case, a group of visitors from the defendant?s side of the family showed up at his home with a sizeable bribe.
On refusing he was issued a life threat?a very credible one from all evidence and appearance. After a sleepless night he rushed to Bhopal to meet the Chief Justice to request protection beyond the lone guard-cum-cook-cum-servant he had, but to no avail. Finally, unable to decide whether to sacrifice his life or his values, he resigned from the state judicial service and later ended up in the organisation where I met him.
The government?s recent thrust on judicial reforms is absolutely laudable and long overdue. Report after international report has pointed out that our overloaded judiciary and the non-enforceability of contracts act as a huge drag on the economy and the corporate sector and are among of the biggest obstacles to greater FDI inflows. The primary issues are doubtless enhancing judicial speed and removing backlogs and reducing litigation times. Increasing supply of judicial services is a no-brainer here.
The challenge lies in enhancing supply without reducing quality?true in any context but particularly true when so much may depend on the ?character? of judges. The Law Minister has hailed the overall quality of Indian judiciary with the exception of a few erring judges.
That observation is certainly reassuring. It would have been even more convincing if more transparency could be available in these matters. For who is to say that our bureaucracy and police, not to speak of politicians do not deserve such certificates? After all, nowhere is corruption universal or wholly absent.
At the end of the day one must recognise that judges, not to speak of public prosecutors, are not a breed apart?they are ordinary mortals in extraordinary roles, with similar motivations and values as the rest of the populace.
Raising supply without compromising quality therefore means not just reforming the legal education system?which is doubtless necessary?but changing fundamentally the incentives and risks associated with the roles at all levels. It is only normal for judges (and yes doctors and teachers too) to care about their careers and pay and the security of their persons and family in making decisions about donning the gown or even entering law school in the first place. Certainly public service matters, but up to a point.
To all this add the difficulty in judging judicial quality in the first place and few would envy Mr Moily his job. Justice V.R. Krishna Iyer has underlined the issue in a recent book* I edited, in words that find new resonance after the Justice Dinakaran controversy. Trashing the idea of judicial collegiums as ?an egregious fabrication, a functioning anarchy?, he says: ?(He) who appoints the judges, invigilates their behaviour and performance and determines their destiny in cases of proved delinquency holds the Everest of State Power.
An occult forensic trinity, a novel collegium of the Apex Court judges accidentally senior, a robed mystery good on the Bench but marginally qualified as selecting agency sans investigative professionalism, sans guidelines and where to look for information on character, antecedents, bar practice, legal scholarship and methods of interrogation and written tests and what not, sans training in professional parameters for judge selection will never fill the bill. What a cult is such a modus? To be a judge is not a substitute for versatile genius. The court is under the Constitution and not over it and cannot invent institutions and vest Constitutional authority on itself by a Bench majority.?
If this is how difficult things can be when it comes to appointing an apex court judge with a handful of candidates, imagine the situation in the lower courts. Just goes to show how hard Mr Moily?s task is, particularly when one considers large scale recruitment of lower court judges.
The government?s focus on numerical targets like litigation time and age of pending cases is well-founded?particularly in absence of any evidence that judicial delays actually improve fairness of judgment even at the obvious cost of its relevance. It is, however, equally important to revamp and reform the review and evaluation process of judges so that it can cope with the higher volumes and ensure judicial standards. Going from a state of ?justice denied? to ?justice buried? (not to speak of justice for sale) would hardly count as improvement.
?The author teaches Finance at the Indian School of Business, Hyderabad
* ?The Other India: Realities of an Emerging Power?, Sage Publications, September 2009