On and off the Bench, many great judges across the world have spoken against corruption in the judiciary. In a democracy, the judiciary rests on people’s faith. On 28 January 2000, the Supreme Court celebrated its golden jubilee. The then President K R Narayanan asserted in his speech that “the degree of respect and public confidence enjoyed by the Supreme Court” is something that no other institution in the country would be able to claim. The speech reflected the image of the top court post 1977. After the Emergency, the court was evidently in an introspective mode, trying to regain its lost glory. There were aberrations, but no colossal fall-off.
Judicial corruption is a complex phenomenon. Tackling it is a tough and subtle job. An independent judiciary is the hallmark of constitutional democracy. The point, however, is to make the judiciary accountable to the people and other institutions, without hampering its independence. This has been and is a great challenge.
The Indian Constitution, by and large, believed in the apparatus of the state—a faith that was occasionally betrayed. On selection and appointment to the higher judiciary, it only laid down broad parameters. So is the case with the vigilance mechanism. It provides for a—close to impossible—system of impeachment by way of Articles 124, 217 and 218. The only instance of impeachment of a High Court judge in India occurred in 1949. Justice S P Sinha of the Allahabad HC was removed from office under the provisions of the Government of India Act, 1935. In the infamous Ramaswami episode, in 1993, Parliament failed in its constitutional duty, even after finding the judge guilty.
The constitutional text is, therefore, inadequate to preserve institutional probity. As American jurist James Madison famously alerted, the clauses in the Constitution, “the parchment barriers”, on their own, cannot check abuse of power. India lacked an institutional mechanism to create and maintain a clean judiciary. In a recent piece, G S Vasu has made a strong case for systemic introspection in the Indian judiciary (14 October 2020).
Let us come to the roots. Shivaraj S Huchhanavar, a legal academic, has compared the regulatory mechanism for courts in India with that in the United Kingdom. He says that the system here is “opaque, inaccessible, slow and ineffective” while the UK presents quite an opposite scenario. Equally significant is the almost fault-free system of judicial appointments in the UK, thanks to the independent Commission that does the job.
India’s fight, if any, for a clean judiciary is a saga of failed experiments. Of course, we have the Judges (Inquiry) Act, 1968. With the judgment in the Veeraswami case (1991), the Act is practically robbed of its utility. The Veeraswami verdict said that no FIR could be registered or investigation carried out against a judge of a constitutional court without prior approval from the Chief Justice of India.
The in-house procedure for enquiring into allegations against the judges was endorsed by the full court of the SC in 1999. It, however, did not prescribe any effective remedy to deal with the erring judges. It provided for advice to the delinquent judge to resign or retire voluntarily. If the judge discards the advice, he may be asked to keep away from judicial duties. A club of judges is not an ideal forum to sit in judgment over the allegations against other judges. Thus, the in-house procedure is structurally unsatisfying and functionally flawed.
The Judges Enquiry Bill, 2006, tried to establish a National Judicial Council to conduct inquiries into allegations of misbehaviour of judges in the higher judiciary. It was a non-starter. During the UPA-2 regime, Lok Sabha passed the Judicial Standards and Accountability Bill in March 2012. It lapsed with the dissolution of the 15th Lok Sabha in 2014. Then came the NDA’s effort to bring in the National Judicial Appointments Commission (NJAC). The top court was not happy with it either. When the apex court struck down the 99th Constitutional Amendment Act on 16 October 2015, not only was the Collegium resurrected, the aspiration to democratise the system too was aborted. The shortfalls of the NJAC is a different topic.
The Law Commission’s 230th report (2009) is a significant document that exposed the glaring fault lines in the appointment process. To stop the ‘uncle judges’ syndrome, the Commission recommended that “the judges whose kith and kin are practising in a High Court, should not be posted in the same High Court”. Ideally, it is not even advisable to select the judge from the same home bar. We need to avert even the chances for allegations of proximity. Abolition of post-retirement jobs is another possible measure, for which certain legislative changes may be required.
A vigilance mechanism in one form or the other is available in countries like New Zealand, Canada and Australia. Better methods for judicial selection too are amply demonstrated in other jurisdictions. The question is whether those in power really want a clean judiciary. Reforms require statesmanship at the helm of affairs. The solution lies beyond the letters of disgruntled politicians and judicial gag orders.
Lawyer, Supreme Court of India