Today's Editorial

11 October 2016

For a clean judiciary



Source: By Kaleeswaram Raj: Deccan Herald



Across the world, judicial corruption is a matter of serious concern. The ubiquity of the menace ranges from the US to China. The Indian judiciary is no exception. In terms of corruption, judiciary remains the least exposed and the least questioned branch. The underhandedness in judiciary, by its very nature, need not be always connected with money, though that could be a dominant player. Corruption, indubitably, is the most pernicious form of judicial misconduct.


In India, allegations and accusations often came from the doyens of the bar and the bench. Senior counsel and former law minister Shanti Bhushan went to the extent of telling the Supreme Court that eight former Chief Justices of the country were 'definitely corrupt'. He reportedly put the allegation on record. Justice Markandey Katju stated publicly that 50% of the judges of the higher judiciary were corrupt which again the media reported. For Justice Sam Piroj Bharucha, the percentage of tainted judges was 20. It is not known as to how the numbers or percentages were arrived at. But the allegations cannot be totally ignored. We have the Veeraswami case (1991) and the Ramaswami episode of a failed motion for impeachment on account of proved misconduct (1993).


It is unnecessary and perhaps unfair to prolong this piece by adding the names. One can clearly say that no part of the country and no period in her history were free from the consternation for a clean judiciary. The allegations though serious, were often not substantiated. The situation is however embarrassing and the impacts are reflected in the Transparency international's Global Corruption Barometer, 2013. It shows that 45% of the respondents to the survey treat Indian judiciary to be 'corrupt' or 'extremely corrupt'. The attributions or accusations do not amount to findings. But the Indian tragedy is that a finding on a charge of judicial corruption is practically impossible, for want of adequate law or mechanism which we badly need.


The Judges (Inquiry) Act, 1968 is inherently inadequate to tackle the problem and is virtually defunct. Even for a First Information Report (FIR) against a judge, the concurrence of the Chief Justice is a must, according to the judgment in Veeraswami case which however held that judges do come within the ambit of the relevant penal statute - the Prevention of Corruption Act. The rhetoric in Veeraswami judgment ended in a kind of impunity for the errant judges, who became insulated against a straight FIR, again in the guise of judicial independence. The registration of FIR against the delinquents in the higher judiciary cannot be expected to happen due to the rider in Veeraswami verdict.


The Kenyan story: Like inefficiency, corruption in judiciary directly results in erosion of institutional credibility. Litigation or any assertion or defence of legal rights cannot be matters of chicanery or trickery. Therefore, the reforms in terms of efficiency, probity, fairness and openness are to occur simultaneously in the institution, as part of a comprehensive praxis. Former Chief Justice Willy Mutunga's strategies in Kenya set a recent illustrative case. Prior to the reforms, according to the global corruption barometer published by Transparency International, 43% of Kenyans were reported to have paid bribes for "services from the judiciary".


But "the Judiciary Transformation Framework" by Mutunga made a radical change in the traditional and formal mindset. "Judiciary Ombudspersons" and the "court users committees" with statutory backing of the Judicial Services Act, 2011 were novel methods of democratisation. Other devices for "oversight" and "supervision" also were designed. A separate Director was appointed to evaluate the implementation of the strategy. A performance management committee was established in 2013. And all went on well. Reforms altered the public's perception of Kenyan judiciary drastically. Relying on Jay Loschky, the study drafted by Maya Gainer says: "In 2013, a Gallup poll found 61% of Kenyans had confidence in the judiciary compared with a low of 27% in 2009".


Appointment procedure


We need to draw lessons from such polite endeavours elsewhere. Judicial independence does not and cannot mean total lack of accountability. A fair and transparent appointment procedure is the condition precedent for a clean judiciary.


The Judicial Standards and Accountability Bill designed by the erstwhile government were passed by the Lok Sabha in 2012. It however lapsed by the dissolution of the 15th Lok Sabha in 2014. There are quite a few deficits and even dangers in the Schemata of the Bill, according to the critiques and therefore its verbatim revival will not pass the muster. We need to have legislation for a permanent oversight committee with a democratically and scientifically designed composition that does not afflict judicial independence. Independence of the members of such committee could be ensured even when eminent 'outsiders' are inducted by due process.

Judicial standards and misconduct need not be precisely defined and those could be better left to be decided by the body concerned, by contextual analysis on a case to case basis. We also need to evolve some effective measures against the delinquency on the bench other than the unworkable device of impeachment. Also we need to curb the unsubstantiated and malicious allegations against the judges, for those will also threat the system in a debilitating way. Article 312 of the Constitution speaks about an all India judicial service to be legislatively designed. But due to political apathy, no serious efforts were made to materialise the aspirations of the constitutional lexicon.

Book A Free Counseling Session