There was an interesting debate on the Indian TV (Star News Channel) on the 27th October
2001, (Big fight on Star News) on the subject of "Who Will Judge the Judges?".
One must congratulate NDTV for organising the debate and for the honourable
Justice Ahamadi, retired Judge of Supreme Court for having participated
in the contentious debate.
One of the most painful aspects of the debate was that more than 90
% of the audience present in the debate expressed the view that they donot
have confidence in the present judicial system to deliver justice. There
was concurrence that the system of appointment and performance review for
Judges was not good enough to prevent inefficiency and corruption. The
present system of Impeachment was considered to be too cumbersome. It was
also felt that the protection available to the Judges through Contempt
of Court (Where Truth is Not a Defense) prevented any possibility of improving
the situation.
There is no doubt that the majority of Indians including the Lawyers,
Judges and Politicians agree that the Indian Judicial System needs improvement.
But nobody seems to agree on the measures that can be initiated for the
purpose since any attempt to change the existing system would attract the
complaint of "Erosion of Judicial Independence".
It is true that no system can be perfect and problems are bound to be
there in any revised system as well. That does not however mean that there
should be no attempt to improve. If 90 % of Indians donot have faith
in the Judiciary, the result is that some people will take law into their
own hands. This is the reason why Naxalism and Terrorism have become common
in the Country and are growing at an alarming rate.
Considering the inadequacies of the Indian judicial system, naavi.org
has been advocating that atleast in the area of Cyber Judicial System that
is yet to be developed in the country, an attempt can be made to improve
the system by opting for a system that is different.
Both under the ITA-2000 and the Communication Convergence Act 2001 (to
be passed) there is a provision for Tribunals and Adjudicators who can
define their own systems for conducting proceedings.
naavi.org has earlier suggested two approaches to improve the accountability
and efficiency of the Cyber Judges which may be relevant to be discussed
once again.
1. Appointment of a "Silent Observation Panel" During Hearings:
The suggestion was as follows:
In the case of an enquiry before the AO, the enquiry may
be held before an expert committee consisting of three members
of public with relevant experience chosen from a panel.
The committee should file a report in confidence on every
enquiry which is seen and referred to by the CRAT, only in the event
of an appeal being preferred. The report may record the views
of the committee on whether all aspects of relevance were considered
by the AO before arriving at an award.
A similar procedure can be appointed for the CRAT proceedings, which
can send a report to the next higher court when an appeal is preferred.
2. Adoption of the Jury System:
The Suggestion was as follows:
The cases coming under the ITA-2000 should be heard by a court in the
presence of a Jury panel consisting of appropriate persons. The Jury would
determine the guilt and the Judge would deliver the judgment.
The above suggestions made in the context of a new judicial process
being initiated for the Cyber Trials are perhaps relevant for other cases
also atleast in select courts. This could reduce the risk of judges being
corrupted without hurting the independence of judiciary.
It must be noted that the first suggestion is aimed only at protecting
a given case from being judged wrongly either because of inefficiency or
corruption. Since the review is only by a higher court during the process
of hearing an appeal, there is no possibility of the report being used
to malign the lower court judge out of context. Whether the judge hearing
the appeal should report gross inefficiencies observed during the process
to the Chief Justice of India or any other disciplinary committee, is a
matter that can be separately considered.
If the suggestions are given a try atleast in the case of Special Courts
dealing with Cyber Crime Cases, Bio Technology and Patent Cases,
it would provide the experience to determine if a similar approach is beneficial
to the whole of the Indian Judicial System.
Naavi
October 28, 2001.
