Chief Justice Ranjan Gogoi recently granted permission to the Central Bureau of Investigation to register an FIR against Justice S N Shukla of Allahabad High Court. This unprecedented step was taken immediately after the Chief Justice’s letter to Prime Minister Narendra Modi to move for impeachment of Justice Shukla. An enquiry panel constituted by the then Chief Justice of India, Dipak Misra, found that there was substance in the allegations against the judge. The main allegation was that the judge abused his judicial authority to favour a Lucknow-based medical college to unauthorisedly admit students for the 2017-2018 batch.
The enquiry panel in Shukla’s case reportedly said that the judge has “disgraced the values of judicial life, acted in a manner unbecoming of a judge to lower the majesty, dignity and credibility of his office”. Therefore, ideally, any act or omission that negates the values of judicial life should fall within the ambit of judicial corruption and one should comprehend it beyond the provisions of the Prevention of Corruption Act (1988).
American Jurist Benjamin N Cardozo has conceived judicial process as serine one that tries to reach the goal of justice with an uncompromising adherence to objectivity of assessment. On adjudication, he said that “in the endless process of testing and retesting, there is a constant rejection of the dross, and a constant retention of whatever is pure and sound and fine.” Jurist John Rawls titled one of his classic works as “Justice as fairness”. Legal Scholar J A G Griffith in his seminal work The politics of the judiciary quoted the English political theorist H J Laski who said that “nothing is more disastrous than that any suspicion of the complete impartiality of the judges should be possible”. Therefore,end of faith in the judiciary denotes end of the society as such.
Any activity or behaviour that meddles with the quality of justice should be a matter of concern. We do not have any comprehensive law addressing the aberrations on and off the bench. But the code of conduct for judges evolved in the Bangalore convention is one that was internationally acknowledged. A round table meeting of the Chief Justices from different jurisdictions ratified it at The Hague in November, 2002. It speaks about independence, impartiality, integrity, propriety, sense of equality, competence and diligence, as fundamental judicial values. It is an ethical reminder to every robed functionary in the courts and the tribunals.But there is a striking dichotomy between what is written on paper and what occurs on the ground. The infamous collegium system has developed a kind of “homo social morphing” whereby the judges select the judges, suiting their own notions of justice and justicing, without any due process and often based on mysterious considerations.
No wonder that the country is no longer capable of routinely selecting a Krishna Iyer, P B Gajendragadkar or K K Mathew on the bench. We, on the other hand, find a judge in Rajasthan High Court declaring that peacocks do not have sex and a Meghalaya Judge requesting PM Modi to deal with the citizenship and domicile related issues, since according to him, right in 1947, India “should ... have been declared ... a Hindu country”. A Kerala Judge also courted controversy recently with his casteist remarks glorifying Brahmins. None of these incidents have any connection with any kind of corruption. These judges might have made such statements quite innocently and honestly. But these incidents tell upon the quality of their understanding of justice and also of the justice that they render. They clearly ignored the Bangalore benchmark. One should, however, note that there are very many erudite judges in the country who function in an admirable way. The ‘bad apples’ need segregation.
A non statutory code of conduct may not be adequate for clearing the system. A comprehensive legislation to ensure judicial accountability is an imperative. The fundamental solution lies in selecting the right people for the tough job. There has to be a formal mechanism based on equality of opportunity and transparency in the process of judicial selection and the independent commissions in advanced democracies indicate the way ahead. Only a systemic change can make a difference.
An assertive bar and a responsible media can, from within the bounds of law, judge the judges and guard the guards. The legal profession has become so hierarchical that it has lost its egalitarian and critical impulses. A professional seldom wants to be a reformer and the path ahead for a reformer is quite thorny. Star lawyers create an artificial and mythical aura around them. No wonder that the reformative movements are terribly vanishing within the institution of judiciary. The ordinary lawyers across the country become a frustrated lot and their helplessness reflects the agony of the masses who are consumers of an imperilled justice system. The oppositional radicalism of an organised bar combating judicial misbehaviour is only a nostalgia that the legal fraternity silently shares.
One dreams a possible utopia in Indian Courts while reading Daniel Webster, who said—“There is no happiness, there is no liberty, there is no enjoyment of life, unless a man can say when he rises in the morning, I shall be subject to the decision of no unjust judge today.”
Lawyer in the Supreme Court of India