|COVER STORY: THE JUDICIARY|
|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.
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)
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 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.”
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.
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.
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”.
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