Judging the Judges
November 24, 2006
Middle-class Indians love the judiciary. We look upon the sage men in black as new-age incarnations of Walter Raleigh, spreading their robes across puddles of corruption and sleaze and enabling a genteel jump across the muck and the slime. If someone were to draw up a list of institutions that we still believe in, I suspect only two would qualify — the Indian Army and the judiciary. If soldiers protect the nation’s physical well-being, the courts are the gatekeepers of its conscience.
And we hate our politicians so reflexively that in any battle between the government and the judiciary, even if we don’t quite follow the contours of the debate, we cheer the courts on.
Small wonder then that we blindly support every attempt by the judiciary to insulate itself from external control. This is because we believe in the independence of the judiciary.
But should this independence mean freedom from accountability?
It may be a worn-out cliché, but after all these years, it’s a question still in search of an answer: who will judge the judges?
Just this month, the cabinet approved a Bill to amend the Judges Inquiry Act and to create a National Judicial Council that will examine all complaints of corruption and misdemeanours against judges. It has been sold as an example
of cleaning up the system and making it more transparent. But other than some stray comments by a handful of lawyers, no one has dared question the new terms by which India’s judges will judge themselves.
First the good news: the Bill is a definite improvement on the present system. Currently, other than the extreme measure of an impeachment motion that needs the signatures of 100 MPs to get off the ground, there is no institutionalised mechanism to investigate complaints against judges. Impeachment motions are impractical and hopelessly entangled in politics — we all remember 1993 and how the impeachment motion against Justice V Ramaswami, the first such action against a Supreme Court judge, failed to go through after the ruling Congress party decided to abstain from voting.
To that extent, the creation of a judicial council is more than welcome. But now, take out your magnifying glass and have a look at the fine print. Who do you think will sit in final judgment on all these complaints? That’s right, the judges themselves.
The council is to be made up of five senior judges of the Supreme Court, who will handle complaints related to the Supreme Court. Three Supreme Court judges will be assisted by two chief justices of the high courts for all other cases of corruption.
In other words, the judiciary will remain answerable only to itself.
My first objection to this is purely practical. In a country where the lower courts have a backlog of 20 million civil and criminal cases, and another 3.2 million cases are pending before the high courts, surely the priority should be to break the legal gridlock? We have just three judges for every 100,000 people, according to a study by the World Bank — among the lowest per capita ratios in the world. Do judges really have the time for full-blown investigations into corruption complaints against their colleagues?
And that’s the second glaring problem with the composition of the council. How objective can the judiciary be about itself? Should there not be some external, independent, representation on the council?
It is no one’s case that ministers or MPs must be on the council — that, incidentally, was what former Law Minister Arun Jaitley had proposed in the NDA version of the Bill in 2003, when he argued in favour of the Law Minister and a nominee of the President being part of the council. Ironically, the NDA Bill was drafted just as Justice Shamit Mukherjee of the Delhi High Court was forced to quit after telephonic evidence of his complicity in a corruption and sex scam surfaced. But the Bill never become law; it simply lapsed with time.
You and I may not believe that a minister, or even a nominee of the President, is above suspicion. But surely, an ombudsman or an elder statesman, or even a group of eminent citizens should be able to find place on such a judicial council? Britain just set an example by appointing a former naval officer as its ombudsman on judicial appointments. Why should any Indian judge resist a similar move here?
Then, there are the omissions in the new Bill: the Chief Justice of India is entirely exempt from the scrutiny of the judicial council and the council’s powers will not extend to complaints against retired judges. In other words, if a judge were to sell a verdict and then retire to the mountains with his stash of easy cash, there would be absolutely no way to pin him down.
But, in a country where the Chief Justice of India is on record saying that at least 20 per cent of all judges are corrupt, there has hardly been any public debate around the provisions of the Bill. The judiciary’s most autocratic weapon — contempt of court — keeps even the normally bulldog-like media meek as lambs. The result: very few cases of judicial corruption ever become public. Most remain hushed whispers in the corridors of power — to be used as useful information to strike an even more useful bargain.
In the few cases that have become public, judges have been woefully lenient towards their own community. So, a judge of the Rajasthan High Court got away with a mere reprimand after being found guilty of sexual harassment. And when two judges of the Punjab and Haryana High Court were implicated in the Punjab Public Services Commission scam, the Chief Justice still wanted a committee to decide whether this was “misconduct” or “grave misconduct.”
Such judges may well be a minority in an institution that is widely believed to be fair, even when it is painfully slow. Lawyers and politicians may loathe judicial activism, but for most ordinary Indians, it has been an extraordinary source of empowerment. The judiciary is now an arbiter of our daily lives — it determines everything from the air we breathe to the homes we live in to the election campaigns our politicians should be allowed to conduct.
So, it becomes even more imperative that the men and women we trust so implicitly should not be scared of our collective judgment.
Explaining the decision to drop the archaic and colonial prefix of ‘Your Lordship’ from the court rulebook, India’s Chief Justice famously said, “The Lord is only one and he is God above all of us. I am not God, judges are not gods.”
Let’s take that image further. Only God is above the law. All human beings — even those we admire and respect — must be held accountable.
And finally, judges are as human as you and me.