Judging Our Judges

Newspapers have had front-page reports on Mr K.G. Balakrishnan, who was Chief Justice of India (CJI) until May 2010. It is alleged that three close relatives of the former CJI have assets far in excess of their known sources of income, and that these assets were accumulated during the five years Mr Balakrishnan had been a Supreme Court judge.

Earlier, another former CJI, Mr Y.K. Sabharwal, was accused of passing orders by which a large number of commercial premises in Delhi were sealed, thus indirectly helping his two sons who were in the real estate business. These are just two of several scandals that have suddenly rocked India’s judiciary.

While reports of dishonesty among politicians, bureaucrats, police and businessmen are common, the thought that corruption may have reached the doorsteps of our judiciary shocks our conscience. This is because the judiciary stands sentinel over our wellbeing. Just as our armed forces guard our borders and secure our physical safety, so are our judges the final defenders of all that we cherish in the world’s largest and possibly the most vibrant of democracies. As legal commentator and professor of law, Gerald L. Gall wrote in The Canadian Legal System: “We expect our judges to be almost superhuman in wisdom, in propriety, in decorum and in humanity. There must be no other group in society which must fulfil this standard of public expectation...”  

The Indian Constitution provides that the legislature will make laws, the executive will implement them and the judiciary will ensure that the two other branches do not go beyond what the Constitution provides. This is an onerous responsibility because the judiciary not only decides disputes between citizens but it also has to decide issues between citizens and public authorities, including our fundamental rights, such as the right to freedom or the right to life. Our judiciary also resolves disputes between one state and another as also differences between states and the Union government. The courts can strike down laws that they believe violate the Constitution through the power of judicial review.

Many even believe that India’s Supreme Court is the most powerful apex court in the world. In an article in Outlook magazine, Arundhati Roy, author and social activist, put the issue succinctly when she said that the Supreme Court does not merely uphold the law, it micromanages our lives: “Its judgments range through matters great and small. It decides what’s good for the environment and what isn’t, whether dams should be built, rivers linked, mountains moved, forests felled. It decides what our cities should look like and who has the right to live in them. It decides whether slums should be cleared, streets widened, shops sealed, whether strikes should be allowed, industries should be shut down, relocated or privatized.” India’s judiciary has become far more powerful than the founding fathers of our Constitution had envisaged.