Just advice

Ever since our Constitution was promulgated in 1950, the mandatory age of retirement of India’s chief justice remains fixed — regrettably — at 65 years. Consequently, since I shifted from Bombay to Delhi in May 1972 to practice in India’s Supreme Court, I have seen as many as twenty-four different persons occupying the highest judicial post. Some of them have come and gone as if through a revolving door — 18 days in the case of one CJI, 31 days in the case of another! A CJI must have a fixed tenure of sufficient duration to enable him (or her) not merely to try cases and write judgments, but to give new direction to our legal and judicial system. The “her” in parenthesis is to remind ourselves that we just missed by the sheer magic of seniority a distinguished lady-judge as head of our judiciary! The incumbent CJI still has three years before he reaches 65: Time, I hope, to get the legal system effectively functioning fast-forward, and to undertake much needed confidence-building measures to inspire renewed confidence in the entire higher judiciary.

But what about retired chief justices of India? They too can help: There are as many as twenty of them still with us. If only these distinguished persons, in the light of their past experience, would come forward and suggest ways and means by which the entire legal and judicial system could be re-vamped and improved, the country would be greatly benefited. Let’s face it: Although the legal system has not “collapsed”, as one or two retired chief justices in the distant past had facilely predicted, it is certainly in need of some major repairs.

Optimist that I am, a few months ago I wrote a monograph which was published by Penguin called: India’s Legal System: Can it be Saved? It was meant primarily to stimulate discussion, debate and controversy which it has not; principally because it is the work of a practising lawyer, not of a judge. Believe me, people still look up to and respect judges in our country. The time has come for a collectivity of former chief justices of India acting in unison if possible (if not, even acting in groups) to make concrete suggestions, not in the form of desultory statements at workshops and seminars or in reports to be read by joint secretaries to government and then shelved, but directly to and through the media, which is a very powerful instrument of dissemination of information and views, as to what they believe should be done. We can then leave it to the media to stimulate public opinion, which in turn will pressurise the primarily minority governments both at the Centre and in the states to do the needful.

Regrettably, law commissions, both at the Centre and in the states have not been a success; even the prestigious Law Commission of India, once headed by a retired chief justice of the calibre of P.B. Gajendragadkar, no longer attracts the likes of recently retired CJIs. For one thing, the chairman of the Law Commission of India has no statutory status; the body is not even autonomous; it is a mere appendage of the law ministry. And its recommendations are not binding on governments. The Law Commission does not even have the authority to publish and disseminate its otherwise useful reports before they are laid in Parliament; the latter being a dilatory exercise, that takes months, sometimes years, and so the efficacy of such reports is greatly impaired.

B.P. Jeevan Reddy, on his retirement as a judge of the Supreme Court (also at 65) was appointed chairman of the Law Commission of India. He worked hard and handed over to the government of the day, in February 1999, a report on corruption and a completely drafted bill: the Corrupt Public Servants (Forfeiture of Property) Bill which made effective and stringent provisions for forfeiture of properties acquired by corrupt or illegal means by holders of public office, including offices and posts in public sector corporations. This important measure, characterised by the Supreme Court as “an absolute necessity if the canker of corruption is not to prove the death knell of this nation”, has not seen the light of day. It languishes on the table of some official in the law ministry. Seven years have passed, neither the NDA nor UPA has thought it fit to even introduce this bill in Parliament! Such is the status of reports and recommendations of the Law Commission of India!

No, something more potent than the law commission is required to revive our somewhat moribund and wayward legal system. And that something is informed public opinion.

The legal and judicial system in our country has not collapsed, and God willing, never will. But since the fences do need mending, sooner rather than later, who better to advise, to recommend and to warn, than those who were once at the controls?

The writer is an eminent jurist