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Between the line

Matter of credibility
September 09, 2009


IN third world countries the judiciary evokes a god-like faith. People leave it to the judges to give them justice, even if it is delayed. The judges cannot allow even an iota of their credibility to be challenged.

Therefore, when there was a public demand in India that the judges should declare their assets, they could not have evaded the issue which they were avoiding since independence. The Supreme Court has unanimously passed a resolution that the judges should declare their assets and put them on the website. But then, the Supreme Court passed a similar resolution some 12 years ago to submit the list of assets to the Chief Justice of India. Apparently, the judges did very little because Chief Justice of India K.G. Balakrishnan refused to answer to the Right to Information (RTI) query whether the judges had been complying with the resolution. In fact, his reply trigged off the controversy.

Of course, the CJI is right when he says that the resolution is “voluntary” in nature. But a law by parliament, as suggested by him, would have placed the judges at the same level as civil servants. The law on the subject would have been embarrassing and Law Minister Veerapa Moily has announced to drop the proposed bill. Unfortunately, a new legislation is being proposed. However, the government should see that the dignity of the judges is not whittled down.

On the other hand, the judges must realize that their credentials have already been smudged due to some serious lapses in their record. The sword of contempt of court hangs on the head of lawyers, clients, journalists and others. Otherwise, many skeletons would have tumbled out of the closet by this time. The judiciary has also the advantage of an instinctive respect for the institution. People do not want to pull down a pillar on which the democratic structure rests. The judges should consider it a plus point.

In fact, former Chief Justice of India S.P. Bharucha was the first one to throw the stone in the placid water of the judiciary a few years ago. He said that the 20 per cent of the judges were corrupt. He never elucidated his statement, nor did he give any concrete suggestion to punish the corrupt. In fact, an advocate from Rajasthan, the state from where Bharucha had made the statement, wrote to him to know the details of his charge which would help him to take up the matter with the state high court. Bharucha did not reply to the letter.

The thread was picked up by the retired Chief Justice J.S. Verma when he wrote a letter to Prime Minister Manmohan Singh to request him to “devise a suitable procedure with legal sanction, without any further delay, to provide for such situations.” That was in April 2005. Verma is still waiting for the reply.

For the sake of credibility, there has to be a uniform procedure to deal with the errant judges. Chief Justice Balakrishnan has applied different yardsticks to different judges. When Justice Soumitra Sen of the Calcutta High Court refused to resign despite his indictment, Justice Balakrishnan asked the government to initiate impeachment proceedings against him.

But when it came to Justice Nirmal Yadav of the Punjab and Haryana High Court in the cash-for-judge scam, the CJI made no such recommendation against her despite an even more severe indictment. Instead, he allowed the CBI to drop the corruption case against Justice Yadav on the opinion of the attorney general. The inaction lent credence to Justice Yadav’s counter-allegation that other judges were involved in the scam.

More recently, when Justice R Reghupathy of the Madras High Court alleged that a Union Minister had tried to influence him in a pending case through a telephone call, the CJI’s initial reaction was to deplore the interference with the administration of justice. Yet, the matter was laid to rest simply because it was found that a lawyer visiting Justice Reghupathy’s chamber had made the call on behalf of the minister.

All would remember the government’s wishy-washy attitude on the complaint made against retired Chief Justice of India Y.K. Sabharwal when in office he sealed certain properties in Delhi that benefited his sons in the real estate business. The Law Ministry said that the Judges (Protection) Act bars court from entertaining any civil or criminal proceedings against a sitting judge “for any act, thing or word committed, done or spoken by him or in the course of acting or purporting to act in the discharge of his official or judicial duty of functioning.” I wonder if the chapter and verse quoted by the ministry is germane to the case. The Act protects a judge against litigants feeling aggrieved over his verdict. It does not cover the allegations made against a judge.

The bill that the Law Ministry introduced in the last Lok Sabha to empower a judicial forum to deal with complaints against judges lapsed after the general elections. What shape the bill would have eventually taken is difficult to say because there were serious differences on the constitution of a judicial forum. The government’s motive was suspect because as the then Lok Sabha Speaker Somnath Chatterjee said if the government had been serious it would have issued an ordinance to give powers to the judicial forum to look into the allegation of corruption against judges.

The demand for the constitution of a judicial forum has not in any way minimized the Supreme Court’s resolution on the declaration of assets by the judges. Countries like Australia and New Zealand have it. Why not the third world? This forum, as the demand goes so far, will have the Chief Justice of India, a Supreme Court judge and a third legal luminary from outside in consultation with the Prime Minister, the opposition leader and the Chief Justice of India. I wish the forum could also have an eminent person from the public, not connected with the law.

In fact, the appointment of judges also needs to be more transparent. At present the Collegium’s senior Supreme Court judges, presided over by the CJI, make the selection. America and South Africa have the Senate to endorse the appointments. The Charter of Democracy which the late Benazir Bhutto and Nawaz Sharif, the Muslim League chief, signed provides an approval by the Senate. India can adopt the same procedure, the Rajya Sabha discussing the recommendation for appointment of judges to the high courts and the Supreme Court.

Accountability of judges is something basic to the credibility of the verdict they pronounce. Their honesty and integrity has to be beyond reproach for their judgments to be respected, not only legally but also morally.

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