Paranjoy Guha Thakurta
The Indian judiciary itself is hardly a paragon of probity, as has been proved over and over again down the years. Nonethelsss, corruption in the judiciary is a subject that is often discussed in private but less so in public. And that has to change
Corruption in the Indian judiciary is a subject that is often discussed in private, less so in public. Even when issues relating to corruption in the judiciary are openly talked about, these tend to be analysed using such fine legal jargon that the subject goes over the heads of most laypersons. The media is apprehensive about raising this topic, except in very general terms, simply because journalists fear that a one-line judgment from any member of the bench would be sufficient to see them behind bars for contempt of court.
There are some who argue that the ‘last’ upright wing of the Indian state is the judiciary, since the country’s political system and its bureaucracy have become thoroughly corrupt and criminalised. But the reality on the ground is quite different: most ordinary citizens find the criminal justice system biased in favour of the wealthy and the powerful. Litigation is not merely expensive: in fact, the judicial system is so procedurally complex that few believe that their disputes would be adjudicated upon within a reasonable period of time.
For the underprivileged, going to court is more often than not a last resort for redressing their grievances. The majority of prisoners under trial spend more time in jail than the maximum sentence that can be imposed on them. It is in this context that a number of recent developments have highlighted once again the pressing need for greater judicial accountability.
In February this year, President A P J Abdul Kalam returned to the Union law ministry a file recommending that Justice Jagdish Bhalla of the Allahabad High Court be promoted as Chief Justice of the Kerala High Court. It has been alleged that Justice Bhalla’s wife, Renu Bhalla, purchased a plot of land along the Greater NOIDA expressway for a sum of Rs 5 lakh, whereas the market price of the land was more than Rs 7 crore. Documents were produced from government officials alleging that the land had been sold by members of a so-called “land mafia” against whom several criminal cases were pending in court. However, after demitting office, the outgoing Chief Justice of India (CJI), Y K Sabharwal, said that certain “leaders” of the bar in Allahabad had denied that there was any truth in the allegations against Justice Bhalla.
In November 2006, Justice Vijender Kumar Jain was appointed Chief Justice of the Punjab and Haryana High Court, despite the fact that at least one judge in the five-judge collegium of the Supreme Court had strongly opposed his elevation, together with two other Supreme Court judges who were not part of the collegium. A complaint had been made against Justice Jain that he had decided a case in favour of a litigant who he personally knew well enough to allow his (the litigant’s) grand-daughter’s marriage to be conducted at his official residence three years earlier. Former Chief Justice Sabharwal, however, stated that there was nothing in the complaint against Justice Jain to prevent him from being elevated.
Leading advocate Ram Jethmalani’s allegations relating to the ‘real’ age of former CJI A S Anand are too well known to be recounted again. So is the November 2002 episode relating to an alleged escapade by three judges of the Karnataka High Court with commercial sex workers in a holiday resort in Mysore. Then, in April 2004, after the controversial former Chief Justice of the Punjab and Haryana High Court, Binod Kumar Roy, questioned two of his colleagues for having become members of a private golf club against which a case was pending, 25 judges of the court went on a day’s mass leave, unprecedented in India’s judicial history. Justice Roy was thereafter transferred, first to Guwahati and then to Sikkim.
Another judge who was recently transferred to Sikkim was Justice B J Shethna of the Gujarat High Court. He had had a public spat with his compatriot, Justice P B Majmudar. Justice Shethna compared the move of the Supreme Court to Christ’s crucifixion. Senior jurist Fali Nariman wrote that the Supreme Court collegium’s decision to transfer Shethna was unfair to the people of Sikkim.
In May 1977, a full bench of the Supreme Court restated 16 values of judicial life. These included three relating to a judge’s professional association with his family members. Yet, it is common knowledge that many relatives of judges continue to practice as lawyers in the same courts over which the judges preside.
To start the process of impeaching a judge, the signatures of 100 Members of Parliament are required. In the case against Justice V Ramaswami in 1993, this became possible because the charges against him, relating to purchases for his residence and the court he presided over, were contained in a report of a government auditor. Justice Ramaswami was tried and found guilty by a panel of three judges appointed by the Speaker of the Lok Sabha. Still, he escaped removal because the Congress party decided to abstain from voting on his impeachment motion.
The 1991 judgement of the Supreme Court in the K Veeraswami case immunised judges of the high courts or the Supreme Court from criminal investigation— neither a first information report (FIR) can be lodged nor a probe be conducted against a judge without the consent of the CJI. Does this mean that a judge can murder in broad daylight and a case be registered against him only the approval of the CJI has been obtained? Sounds a bit ludicrous, doesn’t it?
The Supreme Court has recommended that the Right to Information Act be amended to exclude it from the jurisdiction of the Central Information Commission: this prevents even routine information relating to the appointments of junior employees from coming into the public domain. In November 2006, the Union Cabinet approved an amendment to the Judges Inquiry Act, providing for the appointment of a National Judicial Council comprising judges to look into complaints against judges.
The present CJI, K G Balakrishnan, has said that he is not in favour of a proposal to make it mandatory for judges to declare their assets. He has asserted that any inquiry against a judge by any person who is not a judge would result in a “serious encroachment” on the independence of the judiciary. Not everyone shares the learned CJI’s opinion in this regard. Lawyer Prashant Bhushan argues that the judiciary cannot become a law unto itself, accountable to none. “Independence of the judiciary means independence from the executive and the legislature but not independence from accountability,” he says, adding that the proposed National Judicial Council would not usher in real accountability of the judicial but only create an illusion of accountability.
As a journalist in the early-1980s, I had tried to expose a corrupt sitting judge in the High Court of Kolkata. A prominent English newspaper that had assigned me to write the story backed out after the article had been written. Eventually, a small local publication in Bengali did publish my story of this judge who had antagonised a large number of people, including many lawyers (who are themselves not exactly paragons of probity).
This is not the first time the question of whether judges should be accountable only to other judges and no one else has been raised, nor will it be the last. The March 2003 report of the committee on reforms of the criminal justice system in India appointed by the Union home ministry had started with a quote, which is worth recounting, from the French author and thinker Andre Gide: “Everything has been said already but as no one listens, we must always begin again.”
