The
bard William Shakespeare is now a frequent visitor to Indian court rooms. By
paraphrasing Marcellus’ famous line ‘something is wrong in the State of
Denmark’ in Shakespeare’s Hamlet, the Supreme Court has shown its extraordinary
annoyance about the state of affairs in Allahabad High Court. The Bench,
comprising Justices Markandey Katju and Gyan Sudha Mishra, made two
inter-connected points to support the contention that “something is rotten in
the Allahabad High Court.” One was the number of complaints about the lack of
integrity in a section of the judges, something the Bench said the Chief
Justice of the High Court must take action on, the other was that some judges
have their friends and relatives practicing as lawyers in the court – a state
of affairs that, it noted, has resulted in such people becoming ‘multi
millionaires’ with ‘huge bank balances, luxurious cars (and) huge houses’. The
relevance here is to a pernicious and entrenched phenomenon, which the Law Commission
in its 230th report, referred to as “Uncle Judges”. Uncle Judges are
the inevitable result of the practice of appointing district judges and those
who have practiced lawyers in a High Court as a judge of the same High Court.
As the Law Commission observed, “impartiality and justice is the loser” when
“judges either settle their scores with advocates who have practiced with them
or have a soft corner for them.”
Surprisingly,
the phenomenon of Uncle Judges persists despite the Bar Council of India Rules,
1975, which state that advocates should not plead before a court if related to
the judge, although the stipulation cannot preclude a proxy being used by
advocates by a pre-set arrangement. The Supreme Court's charter of values,
adopted in 1997, prohibit judges from permitting close relatives to appear
before them. The Judicial Standards and Accountability Bill, which is pending
in Parliament, will make it illegal to be an Uncle Judge. Section 3 of the
proposed legislation specifically bars a judge from permitting “any member of
his immediate family (including spouse, son, daughter, son-in-law or
daughter-in-law or any other close relative) who is a member of the bar to
appear before him or be associated in any manner with any case to be dealt by
the judge.” An important reason behind the mass transfer of 30-odd High Court
judges this September and October carried out in the “public interest” by the
Supreme Court collegium was that many had kith and kin practicing in the same
court. But while transfers can check nepotism, they are hardly an effective way
of checking other forms of judicial misconduct - most often, they only shift
the problem from one court to another. What is needed is an effective mechanism
for dealing with judicial misbehaviour, something that the proposed legislation
promises. This is why no time must be lost in passing it.
This
is one thing. Another related development, possibly, opens a new chapter in the
history of Indian judicial administration: that is, ‘Intra-judicial conflict.’
Constitutional experts say it’s rare for a lower court to take on the Supreme
Court in this manner.
Taking
a serious view of its strong indictment by the Supreme Court bench, the
Allahabad High Court has decided to move the apex court for expunging the
critical remarks against it like "something is rotten" out there.
Sources said the judges of the Allahabad
But
what is more worrying from a citizen’s point of view is the reported remark of
a senior judge of High Court to a newspaper, “There can always be a few
examples of wrong doing by judges and lawyers, even in the apex court itself,
but a sweeping remark against a state bench is just not justified.” (IE Dec 4).
Any law respecting and abiding citizen will have nagging questions such as,
Ø “Had any other person made such a
remark when the Allahabad High Court delivered the particular judgement which
had been overruled by the Supreme Court, would not he be convicted for
‘contempt of court’. (for casting aspersion on the judges?) If it is so, does
it imply that the citizen has to silently tolerate the pronouncements of a
corrupt judge?
Ø Will not such open indictment of a
State High Court (brother) judges by the apex court damage the already
corroding image of the entire judiciary and its credibility in the eyes of the
public? Could not the same plea to the Chief Justice of the High Court be
addressed to confidentially and the rot rectified?
Ø If the charge of the senior judge of
the Allahabad High Court that there were “wrongdoings by judges even in the
apex court itself” is true, what is the recourse they have to get it remedied?
The
reputation of India
In
the order of most corrupt institutions, judiciary is placed third, only after
Transport and Police, possibly because the number of people encountering courts
are lesser than the other two.
The
report, based on a 2005 countrywide survey of "public perceptions and
experiences of corruption in the lower judiciary,'' conducted by the Centre for
Media Studies, found that a very high 77 percent of respondents believe the
Indian judiciary is corrupt.
It
said that ‘'bribes seem to be solicited as the price of getting things done''.
The estimated amount paid in bribes in a 12-month period it found was around
580 million dollars. ‘'Money was paid to the officials in the following
proportions: 61 percent to lawyers; 29 percent to court officials; 5 percent to
middlemen."
"This
is a wake-up call not just for India's legal system, but for society and the
state itself", said Upendra Baxi, a highly regarded Indian jurist, former
vice-chancellor of Delhi University, and professor at the University of Warwick
in Britain. "It confirms what we have known for years and casts a shadow
on the integrity of the judiciary. It also calls for urgent, drastic remedial
measures."
"The
report only covers the lower or subordinate judiciary and excludes the judges
of the High Courts and the Supreme Court. There are credible reports that
corruption has permeated the higher judiciary too,'' Baxi told.
In
January 2002, S.P. Bharucha, then Supreme Court Chief Justice, said that 20
percent of the higher judiciary might be corrupt. In recent years, several
upper court judges have been accused of "irregularities", for
instance, in the preferential allotment of valuable land by state governments,
and other favours.
The
report of the Berlin-based TI should greatly embarrass India
"In
India, impeachment is not feasible because it requires a huge (two-thirds)
majority in Parliament,'' argues Colin Gonsalves, a public interest lawyer with
the Human Rights Law Network, “It is impossible to muster the numbers necessary
for impeaching a judge. In 1993, V. Ramaswamy, a Supreme Court judge, was found
culpable by a court committee. But he was politically well-connected and could
not be impeached.
This
"freedom" from prosecution and impeachment further compounds the
credibility crisis of the judiciary, in particular, the higher judiciary, which
in India
The
higher courts of India
Says
the TI report: "As of February 2006, 33,635 cases were pending in the
Supreme Court; ... 33,41,040 cases in the High Courts; and 25,458 cases in the
13,204 subordinate courts. This vast backlog leads to long adjournments and
prompts people to pay to speed up the process. In 1999, it was estimated: ‘At
the current rate of disposal it would take another 350 years for disposal of
the pending cases even if no other cases were added'."
"The
judicial system, including judges and lawyers, has developed a vested interest
in delays as well as corruption; it promotes a collusive relationship between
the different players", said Baxi.
"The
tragedy in India
In
recent years, the Indian courts have practised "micro-management" of
functions which properly belong to the executive, including specifying which
fuel should be used in public buses, how cities should be planned and run,
whether or not certain books should be censored, and whether street food should
be sold. The executive and legislature resent and chafe at this. Indeed, a
first-rate conflict is brewing between these arms of the state, and the courts.
There is a move to demand judicial accountability through a National Judicial
Council Bill, which would allow serious investigation of corruption and other
misconduct on the part of judges. However, the Bill remains mired in conflict.
The judiciary wants the Council to be manned entirely by judges, to the
exclusion of members of the government, and equally important, of civil
society. The executive does not.
That
corruption is all pervasive in judiciary from bottom to top came into light
recently when former Union Law Minister Shanti Bhushan told the Supreme Court
that eight out of the 16 former chief justices of India
The
senior counsel gave details of the identity of the "definitely
corrupt", "definitely honest" and two other judges in a sealed
cover for the perusal of judges hearing a contempt petition against his son and
advocate, Prashant Bhushan. Shanti Bhushan has signed the list. The former
minister said that since he was saying so publicly he should be made to face
contempt of court proceedings and impleaded in the case in which Prashant
Bhushan too was facing contempt proceedings.
Prashant
Bhushan is facing contempt proceedings for saying that Chief Justice S.H.
Kapadia committed a judicial impropriety by being on the forest bench that
heard Sterlite Industries matter. He said this in an interview and at that time
Chief Justice Kapadia was a senior judge in the apex court.
In
his affidavit, Shanti Bhushan said that he should be "suitably punished
for this contempt". The former Law
Minister said that he would consider it as an honour to spend some time in jail
for making an effort to get the people of India
The
senior counsel said that since the question arising in this case affects the judiciary
as a whole, the petition "needs to be decided by the entire court and not
merely by three judges handpicked by a Chief Justice". Sixteen CJI in the past that Shanti Bhushan
has mentioned in his affidavit are Justice Rangnath Mishra, Justice K.N.Singh,
Justice M.H.Kania, Justice L.M.Sharma, Justice M.N.Venkatachalliah, Justice
A.M. Ahmadi, Justice J.S. Verma, Justice M.M. Punchhi, Justice A.S. Anand, Justice
S.P. Bharucha, Justice B.N.Kirpal, Justice G.B.Pathak, Justice Rajendra Babu,
Justice R.C.Lahoti, Justice V.N.Khare and Justice Y.K. Sabharwal.
Shanti
Bhushan in his affidavit said that two former CJIs had personally told him that
their immediate predecessors and immediate successors were corrupt judges. He
said that the names of those four CJIs were included in the list of eight
"corrupt" CJIs.
The
senior counsel said that there was a time when it was "almost impossible
even to think that a judge of a high court or the Supreme Court could be
corrupt". Things have changed drastically during the last two to three
decades which witnessed corruption growing in the Indian judiciary. So much so
that even a sitting Chief Justice of India had to openly admit that 20 percent
of judges could be corrupt, Shanti Bhushan said in his affidavit. Shanti Bhushan in his affidavit referred to
Gujarat High Court Chief Justice S.J. Mukhopadhyay's remark that "in our
judiciary, anybody can be bought". He said despite Chief Justice
Mukhopadhyay's perception, there are a large of number of honest judges in the
country. However, he said that honest judges too were becoming the victim of
this public perception since no institution was taking steps to deal with
corruption in judiciary. (25 eminent personalities for various walks of life
have moved the Supreme Court extending support to Bushans)
We
have by now got so used to "judicial outbursts" in the Supreme Court
that nobody cares to remonstrate. “In no other apex court would one find such
persistent tendency of intemperate sweeping and undignified comments by judges.
Judgespeak has crossed the bounds of courtesy. It’s time for introspection”
says veteran jurist A.G.Noorani. Leaving aside such instances in the last
couple of weeks, comment on which may invite ‘sub-judice’ clause, let us
examine certain observations apex court judges made sometime back. For four
consecutive days in August 2008, the public was treated to a sorry
demonstration of the trait. On August 5, Justice B.N. Agrawal said during the
hearing in the VIPs' bungalows case, "The whole government machinery is
corrupt, whether at the Centre or in the states. They (senior officials) don't
apply their mind, rather they don't have a mind to apply. They don't have the
guts to differ with the opinion of clerks."
When
Justice G.S. Singhvi intervened to say, "God alone will have to help this
country," Justice Agrawal added, "Even God will not be able to help
this country.... Our country's character has gone." This is not the
language of an umpire, but more like that of a political adversary. Earlier, Justice
Agrawal had remarked that the squatters should be arrested and given the
"third degree". What message does this send to our police?
The
next day, August 6, when the two judges sat with Justice V.S. Sirpurkar to hear
the Ghaziabad
On
August 8, a case concerning cops who refused to register FIRs was heard by
Justices Agrawal and Singhvi. The bench said, "In this case you need
huntering (sic, flogging presumably) to make you work." One is at a loss
to know which of the judges made this shocking remark, because a former CJI,
J.S. Verma, forbade the media from reporting observations by individual judges
during hearings. This is simply preposterous. Judges speak as a bench in the
judgement. Oral observations belong to an individual judge and the public has a
right to know who said what.
Critics
are shown scant fairness. On February 19, 2008, Chief Justice K.G.
Balakrishnan, while hearing petitions for bail in the Godhra case, asked all
the lawyers present whether they were in any way connected with Teesta
Setalvad. Furious with an article in ‘Mathrubhumi’ daily he asked, "Who is
this Teesta Setalvad? Is she a spokesperson of these persons or petitioners? If
she is representing these persons (the Godhra accused), we do not want to hear
them." He had, of course, no right to bar them thus; still less to censure
her without hearing her. Eminent intellectuals and national leaders, including the
then Lok Sabha Speaker Somnath Chatterjee were moved to protest.
As
a great judge, Lord Macmillan pointed out, "courtesy and patience...are
essential if the courts are to enjoy public confidence" or ensure a fair
and free trial. The overreaction in the Ghaziabad
The
court's intolerance has grown apace with its acquisition/usurpation of
executive power. Justice Pasayat said on July 14, 2007, "People who do not
have their own Lakshman rekha should not dictate to others". Sometimes
judges have to overstep the bounds of the judiciary to deliver justice for the
common good. But when politicians answer back, the judges are upset and even
comment on remarks on the floor of the legislature, as CJI Sabharwal did on
July 19, 2006, on a Karnataka MLA's remarks.
The
overbearing tendency among apex court judges is found rampant with their
off-the-cuff oral remarks against all and sundry, which will not constitute
part of the judgement and obiter-dicta (non-binding opinion). But pervert
newspapers and TV channels scrambling for headlines and ‘breaking news’, flash
them very prominently as if the apex court delivered its judgements coming down
heavily on so and so. The judges themselves had a taste of their oral
observation given a twist on their ‘pulling up the Prime Minister and later had
to pull up the media’. That should have made them more cautious and circumspect
but it does not appear so.
We
have reached a stage where there is need to define limits by all who are
engaged in the administration of justice.
(12-12-10)
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