The bedrock of our democracy is the rule of law and that means we have to have an independent judiciary, judges who can make decisions independent of the political winds that are blowing.— Caroline Kennedy
ON August 15, 1947, when India became independent after being ruled by the British for over 200 years, the nation adopted the path of parliamentary democracy. The British parliamentary system left a lasting impression; due to the colonial legacy, the framers of the Indian Constitution borrowed this system. However, the freedom of the judiciary was drawn from the US. The American system bestowed considerable power on the judiciary, making it free of the biased influence of the executive and the legislature. The US set an example of the freedom of the judiciary before the world. There is a clear and distinct line that separates the three major organs—the executive, legislature and judiciary. As a result, the US has had a glorious 200 years of peace, progress and harmony.
Amidst the National Judicial Appointments Commission debate over who is supreme, the judiciary or the legislature, Justice Tirath Singh Thakur, a senior-most judge, is designated to take over as Chief Justice of India on December 2. He assumes office at a time when fires are raging in India and will be a veritable general taking over the reins during war-time. There are two important tasks. To restore normalcy and create an atmosphere of confidence in the institution. gfiles’ cover story on Justice Thakur is not about the NJAC controversy but endeavours to tell our readers what kind of a Chief Justice India is going to have in these fraught times. Our writers Justice Vijender Jain, Senior Counsel and Member of Parliament KTS Tulsi, Rakesh Bhatnagar and Neeraj Mahajan, analyse the persona of Justice Thakur.
The new Chief Justice will have major challenges before him. First is corruption in the judiciary. There is no provision for registering an FIR against a judge for accepting bribes without the permission of the Chief Justice of India. Next is the backlog of pending cases. India’s legal system has the largest backlog of pending cases in the world—30 million. Over four million are High Court cases, 65,000 are Supreme Court cases. Then there is lack of transparency, another problem facing the Indian judicial system. Last but not least, undertrials in Indian jails spend more time in jail than the actual term that might have been awarded had the case been decided in time. And, of course, the Indian judicial system has little connection with society, something it inherited from the British judicial set-up.
Political winds are blowing and the judiciary is unflinchingly trying to be independent and not succumb to the will of the political dispensation. The debate will keep going. Parliament has to finally take a call about who the decision-making body in the country is—the legislature elected by the people of India or a judiciary selected by the system. If Parliament is not ready to decide the crucial issue soon, it will have serious repercussions in future. Thankfully, at this juncture the Indian judiciary will be headed by a judge who is cool-headed, farsighted and endowed with insightful vision not only for the judicial system but the nation.
VOL. 9, ISSUE 8 | NOV, 2015