Judiciary in India : Need for reform

Judiciary and its brahmanical prejudices in India

By Vidya Bhushan Rawat


Two Judges of Supreme court recently, for the first time in our judicial history, had the courage to challenge the religious text of the Brahmanical order. In an order favoring tribal women’s land right violating which the powerful in the village termed her as witch
and paraded her in the village. The Judges were very forthright in their statement saying that violation of the tribal right start from ancient period when Guru Dronacharya asked from his tribal disciple Eklavya to donate his thumb to him, in order to protect the interest of Arjuna, the kshatriya warrior to be the best archer of the world.

Not long back the same Supreme Court gave a judgment saying Hindutva is a way of life. It has been criticized. The highest court today is more sensitive than ever. Just a few days back the court amended their old order in which they upheld the life sentence to Dara Singh, the mastermind of burning Grahm Stains with his two sons in Orissa. While court upheld the high court’s judgment, it unnecessary stretched its brief to conversion and then said that Dara Singh was protecting people from converting to Christianity. The court later realize their mistake and amended the order.

The brahmanical prejudices in our system are well known and judiciary is no exception to it. There are number of judgments against dalits on the issues of reservations are well known and can be elaborated here. Even after the Mandal judgment the issues related to OBC reservation has been diluted in many ways and the issue of merit always cropped up as if there is no merit in those who come through reservation. This stand is quite dangerous. In fact, Indian courts have continuously opposed reservation in judicial services terming that it will affect merit in the courts as if all the other sectors where reservation is effective are non meritorious. The fact is judicial appointments are political nature and there is control of several families in top echelon of Indian judiciary. Like every other sector, here also we have judges who have history of their parents in the judiciary. Earlier, the people retiring from the Supreme Courts used to keep themselves off from the politics but today they are openly part of political parties and ideologies. Many of them like Justice V.M.Tarkunde, Justice Krishna Iyer, Justice Rajender Sachar gave monumental contribution in the field of human rights and promoting rule of law in the country and never ever took any official position. Some of them actually gave dangerous judgment and reports. Justice Rangnath Mishra was appointed by Rajiv Gandhi to look into the anti Sikh riots in the aftermath of Indira Gandhi’s death in 1984 and not a single political leader from the ruling party was charged. Justice Mishra got his reward to Rajya Sabha from the Congress Party.

The lower judiciary is more prone to brahmanical biases. In Allahabad, a district judge washed his court room with Ganga Jal when he assumed charge as his predecessor was a Dalit. Just a few days back we heard that a judge in Madhya Pradesh asked the government to get each children’s horoscope checked by the Brahmins and then admit them to school so that they can understand whether the boy or girl is going to be healthy child or not. This story has appeared in the Times of India yesterday though it was abuzz in the internet for long. The Child Rights commission in India has asked for a report on it.

Indian judiciary is like any other sector in India suffers from the inadequacy of understanding the issues and problems of the marginalized. If there are some judgments favoring them they are purely on charitable and good will basis. When ever the issue of the rights of the Dalits and marginalized have come judiciary by and large was seen with powerful. Several years back, the a retired Supreme Court judge was asked by the Supreme Court to report on the inadequacies Public Distribution System in several states. He called up meeting of many people working on the same. I was one of them. In the meeting the former Judge was asking people what would be good for them and then came out with an idea that to improve the efficiency of the PDS they must have computers at their shop. Every body was happy but when they realize that this was nothing but another sale ploy people opposed it. Suddenly, some of the people suggested the issue of quota for the Dalits, Muslims and others in the distribution of these shops. The judge became furious and he asked the others as why don’t they openly oppose it. How one any one who is not known marketing be given charge of shops. And he just stuck down the entire formulations that we can not talk of quota here.

In the past twenty years judiciary paved way for land acquisition process which was responsible for displacement of hundreds of thousands of people. Political craftiness and crookedness forced political leaders to take shelter in the judicial activism which was nothing but turning the issue of executive which is more accountable to the people, in their hands. Land has always been acquired in the name of ‘public interest’ but none could find what the public interest if lakhs of people have been uprooted from their land. There are definitely very good judgments and we always are grateful to them. We still look for some good judgments as people are quite fed up with political maneuvering.
Hence, land acquisition never ever got discussed in Parliament but it has been justified by the judiciary on many occasions.

Thousands of cases related to land ceiling act are lying with courts. Powerful people have time and money to delay judicial process. It’s the poor who bear the brunt of it. It’s difficult to bring all the cases to the court. Justice Y.B.Sabbarwal’s over enthusiasm on implementing Sealing process in Delhi and making our cities ‘world class’ is well known. It uprooted lakhs of people. DDA and other authorities got right to demolish any location and slums without rehabilitating them. It was painful to see how the doors of court remain close for the poor as they feel helpless.

Three years back a 4 year old Dalit girl was thrown into burning fire allegedly by an upper caste boy in district Mathura. The UP government appointed a fast track court to implicate him. The boy was booked under SC-ST prevention of Atrocities Act. The judge after hearing every one exonerated the boy that there is no witness. He rejected the contention that girls mother is a witness saying that she was in veil when the girl ‘fell; into the fire. There was no other witness and hence the judge came to the conclusion that the girl fell the fire out of her own even when it was clear that she was going to defecate with her mother and was pushed to fire by the local landlord who was unhappy with their using his fields to defecate.

It is important that India reform its judicial system and form an all Indian Judicial commission which be made responsible for recruitment of the judges and they be monitored and seen. Let a committee of retired judges observe and read the judgments of these judges and then promote them. Right now most of them are picked up from the practicing lawyers of High Courts, so political favor, relationships and other things matter and unfortunately that reflect in judgments on many occasions. Binayak Sen’s conviction is one such incident of how judges in the lower courts have already made up their mind and do not normally question the government version. The situation is grim as people do not have money and patience to fight for their cases in the High Court and Supreme Court.

I have been fighting for the case of 150 Dalit families in Shaheed Udham Singh Nagar for the past 15 years. The were fighting for implementation of land ceiling act and be given land declared surplus under Ceiling Act. This case went to Allahabad High Court where the judge upheld ceiling. Then the powerful people of a company challenged in the Supreme Court and lost there also. The judgment came in 2004 and we waited with breathe that now the people would get their land. When nothing happened and the judgment was dubiously used to defeat the purpose of it, we went to the Lokayukta of the Uttarakhand state who took about 2 years to come to a conclusion that the violation of Supreme Court Judgment has happened that official need to be punished. Nothing happened. We went to the Supreme Court again. Justice K.G.Balakrishanan accepted the petition but for next three years, he did not give us time to hear it. As soon as it he retired, the petition came to current Chief justice who directed us to go the Uttarakhand High Court, Nainital. Now, it is painful for people to wait for three year and then be asked to go back to High Court. We went to Nainital High Court where the chief justice was not willing to listen to us even when we mentioned that it is under the direction of the Supreme Court. Finally, he fixed up a date to clear the case. We brought to his notice violation of Supreme Court judgment and Lokayukta report but that was clearly rejected. Lokayukta can not be bigger than this court said Chief Justice. Now the question was no body was questioning the powers of judiciary, we just used his report because it took two years for him to come to some conclusion and he himself was a judge in Lucknow bench of Allahabad High Court.

The Ayodhya verdict has been shocking. How are the judges going to decide where Lord Rama Was born. Is it the job of the judiciary to decide about it. The matter before them was whether some body installed the statues of Ram in the Babari mosque or not and secondly about the ownership of the land which could have been judged on the basis of their papers yet the judges went on and on to declared it. If such cases become a legality than it would be difficult to find any land in India for human being as under each building the religious thugs are ready to say there resided a ‘god’ and we have over 33 crore of them.

The latest judgment in this series is of Bombay High Court which declared that Astrology is science. Should the judiciary accept such cases? How can they come to such a conclusion? If they want a meaningful judgment why can’t they seek opinion from medical and other department like that of Science and Technology? Isn’t it a fact that our judiciary is taking their role much beyond their defined role and is opening a Pandora’s Box. Such judgment helps the religious manipulators to spread their false massage in the name of judicial approval. It does not bode well to the health of the country. There is a need to control astrologers as there is no mechanism where they be held accountable. There is no mechanism where an Ayurvedik doctor and his activities be monitored under MRTPC act. If they are being declared as science and modern then all the modern day rules and regulation should also be implemented on them. Like any medicine they should also put expiry dates and other things on their products and all their activities should be scrutinized.

It is really needed that judicial system be reformed so that people get justice. This is a great season at the Supreme Court when some of the judges have delivered great judgment favoring tribal and Dalits, on human rights and against corruption. One sincerely hopes that this tribe of honest judges will increase whose judgment will help the marginalized gain their rights and confidence. It is time for reservation in judiciary for the Dalits, Muslims, Adivasis and women so that their confidence level also grows and people feel safe that the judges will understand their feeling and issues. Some of my friends suggest that this is the best moment in the Supreme Court in recent history when we are witnessing some fairly balanced judgment. People are still looking to higher courts for resolution of their problems. On Gujarat they have consistently taken a stand against the communal politics of Narendra Modi. Similarly, on many other things including the tribal rights, common land of the village, on women’s right, the judges have taken bold stand in the Supreme Court. One sincerely hopes that the highest court of the land will do its best to change the set up of judicial appointments as well as speedy process of law so that they are delivered on time. It is also important that Supreme Court take not of what the High courts are delivering and wheverever the judges have gone or commented beyond their jurisdiction should not only be scrutinized but those portion should be withdrawn. In the Graham Stains case the Supreme Court has withdrawn controversial portion of its order which is a welcome sign. One hope that the Supreme Court will support initiative in the direction so that in our judicial officers are more sensitized on the issue of caste, gender and communalism and it is not possible without fair representation of people from affected communities in the services.