Rot in the System
Charges of misconduct against some senior judges have dented the image of the judiciary, prompting the Government and the legal fraternity to think of urgent, corrective steps
By Sumit Mitra
My Lord. The words have a ring of authority next only to the majesty of a sovereign or the head of a republic. And the term, which in India is used to address a judge who is a member of the Supreme Court or the high courts, commands unmatched veneration both in and outside the courts. The 641 lord justices in the country are sheathed in immunity. But a string of incidents in the recent past involving aberrant members has resulted in the judges being publicly denigrated.

  Two judges of the Punjab and Haryana High Court are asked to go on leave and a third has no work allotted to him after an inquiry showed they were hand-in-glove with former Punjab Public Service Commission chief R.S. Sidhu in the cash-for-job scam.
In Bangalore, there are extensive media reports about three judges, along with two women advocates, of the Karnataka High Court being part of a drunken brawl at a suburban resort.
A judge of the Rajasthan High Court and a registrar proposition a woman doctor with a bargain: sex in return for fixing a case of illegal abortion against her.

The charges are grave and the protests are getting louder. Three judges of the Karnataka High Court were accused of making indecent overtures to women guests at a resort in Mysore while on a bacchanalian spree in November last year. The same month, a Rajasthan High Court judge, assisted by a court official, allegedly propositioned the owner of a body-care clinic in Jodhpur with a bargain: sex for “fixing” a case of illegal abortion against her. In Chandigarh, three judges have been found to be hand-in-glove with disgraced Punjab Public Service Commission (PPSC) chief Ravinderpal Singh Sidhu in the cash-for-job scam that rocked the state in mid-2002. These apart, there are charges of misconduct against judges in at least 12 of the 22 high courts in the country. Many of these may be mere allegations but they are enough to cast aspersions on the integrity of the men in black. Union Law Minister Jana Krishnamurthy admits matters are getting out of hand. “Earlier, such deviant behaviour was confined to the lower judiciary. Now it has reached the high courts,” he says. “Unfortunately, we have no mechanism at present to deal with the situation.”(see interview)

  “A judicial commission has to be set up to stem the rot.” K.K. Venugopal, senior advocate
  “There is need for a package of remedies.” P. Chidambaram, former finance minister and senior advocate

For quite some time now, the legal community-and even lawmakers-has been raising its voice about the non-accountability of members of the higher judiciary. Widespread protests by the Karnataka bar forced the then chief justice of India (CJI) G.B. Pattanaik to set up a three-member judicial committee to inquire into the “judges’ sex scandal” case. Even as the panel submitted its report to CJI V.N. Khare, Justice Amarbir Singh Gill and Justice Mehtab Singh Gill of the Punjab and Haryana High Court were asked to go on indefinite leave after a three-judge committee indicted them for their role in the PPSC scandal. The third accused, Justice M.L. Singh, whose retirement is due shortly, was reprimanded by the CJI-a moral punishment that is enough to leave a judicial career indelibly tainted-though no action was proposed against him.

  “The charges should hasten the creation of the NJC.” Abhishek Singhvi, senior advocate
  “What has come out is just the tip of the iceberg.” M.P. Vashi, former chairman, Maharashtra Bar Council

The intervention by the apex court did not come spontaneously, though. Former CJI B.N. Kirpal, from whom Pattanaik took charge, sat for three months-till his retirement-on the report of Justice Arun B. Saharya, former chief justice of the Punjab and Haryana High Court, that had indicted all the three judges. The Karnataka scandal attracted a chief justice-level inquiry only a month after the incident had allegedly taken place, while the inquiry into the Rajasthan scandal took two months to get off the ground.

The lawyers did not take the apex court’s dillydallying lightly. When there was talk of transferring one of the scam-tainted Chandigarh judges to Guwahati, lawyers in Assam took to the streets. Suggestions that the three judges facing charges in the Mysore sex scandal case be transferred to Patna, Srinagar and Guwahati were met with howls of protest. “At one level we want Kashmir and the Northeast to feel a part of the Indian nation, at another level we are sending the message that judges found ‘unfit’ in other parts of India are to be transferred to these regions as a punishment,” wrote lawyer Indira Jaisingh to Pattanaik. “This approach does not address the central issue of gross misconduct by the judges.”

In most high courts-if not in the Supreme Court-the picket fence between the bar and the bench is embattled. Lawyers exchange suggestive glances instead of nodding respectfully when the lordships take their chair. When former CJI S.P. Bharucha said the integrity of “only about 20 per cent of judges in the higher judiciary” was in serious doubt, it was interpreted by most as a none-too-subtle euphemism, rather than touting it as a character certificate for the remaining 80 per cent. Attorney-General of India Soli Sorabjee, known for his restraint on most judicial matters, sounds a note of caution when he says, “When one nun goes astray, the whole nunnery goes with her.”

Corruption and nepotism have not spared even the highest office of the judiciary
K. VEERASWAMI: The former judge of the Madras High Court was found guilty under the Prevention of Corruption Act, 1946, but fought his case in 1991 in the Supreme Court. The apex court in a later judgement held that a sanction from the CJI was needed before a criminal case could be registered against a judge.
V. RAMASWAMY: Son-in-law of Veeraswami, he was a judge in the Supreme Court when the Speaker of the ninth Lok Sabha admitted an impeachment motion brought by 108 MPs against him for financial irregularities committed during his term as chief justice of the Punjab and Haryana High Court.The motion was, however, defeated as Congress MPs stayed away in 1993.
A.M. BHATTACHARJEE: The chief justice of the Bombay High Court was forced to resign in 1995 after it was found that he had received Rs 70 lakh as book advance from a publishing firm known to have links with the underworld.
AJIT SENGUPTA: The Calcutta High Court judge made it a routine to issue ex parte, ad interim stay orders on anticipatory bail pleas from smugglers having links with the Mumbai underworld. He was arrested in 1996 for FERA violations after retirement.
A.S. ANAND: As CJI, he was accused of using his position to get the subordinate judiciary to rule in favour of his wife and mother-in-law in a suit that had been barred by limitation for two decades. There was also a cbi probe after a dispute arose over his age in 2000. The investigation report was not made public.
A.M. AHMADI: When he was CJI (October 1994-March 1997), his daughter, a lawyer in the Delhi High Court, caused eyebrows to be raised for getting “special” treatment from certain judges. When some members of the bar sought a resolution banning lawyer-relatives of judges from staying in the same house, the cji got members to defeat the motion.

But the moot issue is neither the reluctance nor the delay by the Supreme Court in responding to the charges-though these are serious lapses-but on who should act and how an errant judge should be punished. It is a lot simpler in the case of the 12,000-odd subordinate judges ranging from the district judge to the munsif, who can be removed if they are found guilty. But it is almost impossible to remove a high court or a Supreme Court judge. The Constitution permits removal only by a motion of impeachment passed by two-thirds majority of Parliament, present and voting. And even that only after a three-judge committee has pronounced the judge guilty.

In post-Independence India, there has been only one impeachment motion in 1993 against V. Ramaswamy, a Supreme Court judge. But the motion that sought his removal related to his stint as the chief justice of the Punjab and Haryana High Court. The comptroller and auditor-general had found discrepancies in the accounts relating to the furnishing of the chief justice’s residence. Also, Ramaswamy-whose Chennai residence is incidentally named Coin House-was accused of wrongfully claiming reimbursements for phone calls made to his family. Ramaswamy escaped impeachment when the motion, jointly moved by the Opposition, failed to get the ratification of two-thirds of the MPs present.

Adding to these constitutional hurdles are the apex court’s guidelines in the K. Veeraswami (Ramaswamy’s father-in-law and a judge who was accused of graft) case, prohibiting a criminal case being registered against a judge of the higher judiciary under Section 154 of the Criminal Procedure Code. While most lawyers felt the sanction to prosecute judges must be given by the President only in consultation (which implies concurrence) with the CJI, former CJI J.S.Verma, in his dissenting judgement, preferred total exclusion of the higher judiciary from the purview of the Prevention of Corruption Act, 1946. The verdict in the Veeraswami case (see box), coupled with the near impossibility of getting an impeachment motion passed in the fractured Parliament, has put judges beyond the reach of law.

On Sunday, November 3, 2002, three judges of the Karnataka High Court, along with two women advocates, allegedly got involved in a brawl with a woman guest at a resort. The police arrived but reportedly didn’t take action.
The three-judge inquiry committee appointed by the CJI has filed its report. Action awaited.
In November 2002, Sunita Malviya, a Jodhpur-based doctor, alleged that a deputy registrar of the Rajasthan High Court had sought sexual favours for himself and for Justice Arun Madan to “fix” a case in her favour.
A committee set up by former CJI G.B. Pattanaik found prima facie evidence against Madan, who does not attend court anymore.
Three judges of the Punjab and Haryana High Court sought the help of disgraced PPSC chief R.P. Sidhu to ensure that their daughters and other kin topped examinations conducted by the commission.
Two inquiry panels indicted the judges. Gill and Amarbir Singh have resigned. M.L. Singh continues, though no work is allotted to him.

The legal fortress in which they live has been further protected by the Contempt of Courts Act, 1971, which empowers judges to protect themselves on the plea that such exposures would “scandalise” the court-though it is generally misused to gag honest criticism. Truth cannot scandalise. “Sunlight is the best disinfectant,” said American judge Louis D. Brandeis. Yet, Indian courts hold people guilty of contempt at, literally, the drop of a hat.

In the Calcutta High Court, some judges routinely threaten to haul senior IAS officers under the contempt law on charges as ludicrous as “attempting to sound technical” or “exhibition of expertise”. The shield of contempt was once used by justice Ajit Sengupta of the Calcutta High Court to ward off an inquiry into the source of funds for his daughter’s education abroad. It is another matter that Enforcement Directorate officials raided his house the day after his retirement and got him arrested. In the Karnataka judges’ scandal, the admission of 54 contempt cases speaks for itself. The attempted judicial stonewalling and the rampant misuse of the contempt laws has led to a situation that constitutional historian H.M. Seervai had warned against-having one law for a corrupt minister and another for a corrupt judge.

FAIR PLAYERS: Chief Justice V.N. Khare with President A.P.J. Abdul Kalam (right) and Deputy Prime Minister L.K. Advani (left)

Meanwhile, with little or no transparency in the “in-house” procedure of inquiry into alleged judicial misconduct and the inertia of the vigilance set-up in the high courts, the credibility of judges has reached its nadir. It is only benefiting a section of lawyers with high “face value”-a term that obliquely refers to the lawyer’s “special” relation with the judges of the court. Significantly, the lawyers with the highest face value are often the spouse, son, daughter, brother, sister or other close relatives of the judges. In accordance with the “Restatement of Values of Judicial Life”, a yet unpublished 1997 document adopted by the Supreme Court judges, a judge should not permit his relatives to appear before him (see box). But there is no breach in the norms if the relative practises before other judges of the same court. Sceptics say the restriction leaves room for “brotherly return of favours”.

In the Delhi High Court, there are a dozen judges (out of 30) whose offsprings and wives practise in the same court. And barring a few, their lordships stay with their lawyer-relatives. During A.M. Ahmadi’s tenure as CJI, his daughter Tasneem had a roaring practice in the Delhi High Court. The Committee on Judicial Accountability alleged that she was “using” her connection to get favourable ruling and demanded, as a remedial measure, that Tasneem and her father should not live in the same house. The demand went unheeded.

The low credibility of the judiciary has affected the executive’s perception of the judges too. Officials privately talk of judges blatantly fudging petrol bills, leave travel allowance documents and telephone bills. Last year, judges of one high court claimed Rs 2.6 lakh for telex, a machine that most thought was not used in modern times, in addition to Rs 30 lakh for phone, Rs 2.7 lakh for fax and Rs 2.4 lakh for postal charges. But no one in the state Government had the nerve to ask for supporting bills. The fear of the bench has officials in the Union Law Ministry equally intimidated. Nobody dares question a judge if he produces a travel bill that shows he went to attend a conference in Vienna via Washington.

But the charges of misconduct against judges have jolted the Centre into action. Krishnamurthy has already hinted at reviving the proposal to set up a national judicial commission (NJC). But here too, on assuming the CJI’s office, Khare clearly stated that NJC is not necessary as the existing system is “working alright”.

Judicial Commandments
The yet-unpublished Restatement of Values of Judicial Life, adopted by the Supreme Court in 1997, says that a judge shall …
Not contest election to any office, club or society;
Shun close association with members of the bar;
Not let a family member or relative practise in the same court;
Not live in the same house with relatives practising law;
Not hear a matter involving relatives;
Not express his views in public on political matters or matters that are pending judicial determination;
Not give interviews to the media;
Not accept gifts from anyone outside family circle;
Not hear matters of companies in which he holds shares;
Avoid speculation in stocks;
Not engage in trade or business;
Be conscious that he is under public gaze and must not act in a manner unbecoming of the high office he enjoys.

The trouble is that the judiciary, unlike all other professional communities, is self-regulated. In the Karnataka scandal, one of the judges under investigation is said to have pleaded with several of his brother judges to testify that he had indeed spent that particular evening with them-and thus give him an iron-clad alibi.

Legal experts say the “Restatement of Values of Judicial Life” should be expanded to ensure:

No Supreme Court judge has any kith or kin on the bar of even a high court (to avoid the Ahmadi-type situation);

No high court judge has any kith or kin on the bar of the same court;

No judge hears a case involving a party that might have engaged him, before his being appointed a judge, as a lawyer on retainer basis (recently, consumers of a power utility went to the Supreme Court to appeal against a tariff hike order given in the high court by judges who, before their appointment, had allegedly been retainer lawyers of the utility firm);

Every judge submits to the NJC annual statements of assets held by him either individually or jointly with spouse or children.

The problem: reputable judges do not require the manual while disreputable ones will find ways to violate it. The only way out is to let in “sunlight” to make the affairs of the court transparent. A major instrument that is hampering fair play is the Contempt of Courts Act. “It would indeed be ironical,” states the National Commission to Review the Working of the Constitution, “if, in spite of the emblems hanging prominently in the court halls, manifesting the motto of Satyameva Jayate (Let truth prevail) and Yatho Dharma Statho Jaya (Where there is righteousness, there is victory), the courts rule out the defence of justification by truth.” The commission has suggested appropriate changes in the law and even a constitutional amendment enabling citizens to use the rights of freedom of speech in presenting the truth without fear of contempt.

For India to evolve its own system of judging the judges, it may still not be easy. But with the quality of justice becoming increasingly questionable, the time has come for the Lord Justices to take the initiative of not only being fair but being seen as fair. They could take a cue from Herodotus’ account in Henry Cecil’s Tipping the Scale. On discovering that a judge in his court had behaved dishonestly, King Cambyses of Persia had him executed, his skin stripped and stretched on the judgement seat. He then appointed the judge’s son as the new arbiter and told him to remember the “way his seat was cushioned”.

-with Ramesh Vinayak, Stephen David and Rohit Parihar

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