As we rush to the courts to remedy wrongs farther and farther afield, the courts must assess the consequences that the law they will lay down shall have—and naturally, the consequences will extend beyond the immediate issue that they are addressing in the judgment. For this reason, I would urge a closer acquaintance with the world that we have to face, and what we must do to face it. Others are not going to slow down because we have not solved our problems: for a moment, consider the time it takes to obtain judgments in a case involving the impact of a project on the environment and contrast this with the pace at which China is building infrastructure in Tibet for troop movements. Similarly, consider the consequences that judgments on reservations—with half the service recruited and promoted by birth rather than competence—will have for our capacity to deal with a world changing at lightning speed. Yes, it is a world of opportunities but it is also a heartless world: there is no place for a second-rate individual, a second-rate firm, or a second-rate country. And yet when we look at the cumulative effect of Thomas, Indira Sawhney, Nagaraj, there can be no doubt that together they strike a mighty blow against excellence and performance. Even though, in each round, the Supreme Court tried to restrain the political class, it went along in the subsequent rounds when the politicians came back with amended articles of the Constitution. As a result, today vulgarity has become a right, mediocrity has become the norm, standards are derided as a conspiracy to keep the poor down, ignorance of facts becomes a ground for sticking to an unfounded opinion, intimidation has become argument and assault is proof. And we are going to compete in the world? Similarly, by extending the definition of the ‘State’ and ‘other authorities’ to encompass governmental enterprises, have the courts not enabled a perverse ‘work culture’ to spread in them; and thereby helped in sending them to their deaths?
I would, therefore, plead that judges make an extra effort to learn where the world is, where it is headed—in particular, where our competitors and adversaries are headed. Every so often journalists do not visit factories and project sites about which they write. Their reports can cause authorities to take unwarranted decisions. But judges visit factories and project sites even less. And the consequences of the opinions they form are infinitely more substantial than the writings of journalists. As I sat in the Faridabad court, I often asked myself: here are 700-odd individuals being prosecuted; many of them must be in the same position as us—they too may not have laid a brick; on the other hand, the real problem—illegal mining—is going on in broad daylight; why does the judge not leave his room for a day and just make a surprise inspection of the site?
Of course, every case is important. But given the importance of the State in our lives in India, cases involving public servants need special attention and dispatch. In cases where, for instance, a public servant—a minister, a legislator, a judge, an officer or a policeman—is accused of having amassed assets which he cannot account for by his known sources of income,
* Judges must not allow adjournments at all. What a travesty it is that years and years go by after conclusive evidence is found about the accumulations of political leaders—buildings, land, cash—cases languish in courts. And they continue to make and unmake governments.
* As the Commission on the Working of the Constitution urged, the rule of evidence must not be ‘beyond reasonable doubt’ but ‘the preponderance of probability’.
* Judges must go by brute facts rather than let public servants get off via legalisms.
* Except where it is established that the witness was pressured to make the original statement, witnesses who resile must be punished severely for perjury.
Courts have the power to punish for perjury—as they do to refuse adjournments. Yet it remains one of the least used of powers, and its non-use is responsible for great mischief. Look at the way the prosecution has gone back and witnesses have somersaulted on what they solemnly swore in courts in regard to blasts that killed scores. Similarly, it does not take a Sherlock Holmes to see when the prosecution is diluting its case—the very fact that this coincides so often with a change of rulers should itself be enough to alert any judge to what is happening.
Excerpted with permission from HarperCollins