Years ago, when I had just joined the civil services, I was posted in Kozhikode in the north of Kerala for revenue and judicial training at the district level. One important revenue function is land acquisition. The divisional revenue officer sent me to count the number of coconut trees on a piece of land proposed to be acquired and to estimate their yield by looking up at the flowers, the fruits and the inflorescence. It was a big farm and there were many trees. I counted once. He asked me to count again. This time, I got a different number. I suggested that we take the average of the two counts. The revenue officer was horrified. He said the owner of the land would go to court, demanding many times the value estimated by the department. A mistake could be very costly to the government.
That was my first encounter, at the age of 23, with the possibility of corruption in courts. The revenue inspector who had accompanied me told me that the usual practice for judges was to give many times the value of the land. The excess over the estimated amount would be split three ways between the plaintiff, the lawyer and the judge. A far cry from the notions of independence and fairness of the judiciary taught to us within the hallowed precincts of the National Academy of Administration at Mussoorie.
Later in my career, I came across several cases of blatantly partial or patently incorrect judgements given at various levels of the judiciary. There have been cases of judges favouring one or the other for money or for ingratiating political powers even at the apex level. When asked about corruption in the judiciary, former Supreme Court Chief Justice Ranjan Gogoi replied, “Corruption is as old as society. Corruption has become a way of life—an acceptable way of life. Judges don’t drop from heaven.”
In 2009, lawyer Prashant Bhushan told the Tehelka magazine that, in his view, half of the previous sixteen or seventeen chief justices of the Supreme Court had been corrupt.
When I was in Delhi, stories of suitcases being surreptitiously passed on to a high authority of the Supreme Court at St James Park in London during his morning walks were widely mentioned by top lawyers.
Arun Jaitley, then the Leader of Opposition in the Rajya Sabha, pleaded with the government not to give post-retirement assignments to top judicial functionaries. Give them a full salary, give them other benefits, give them a house in Lutyens’ Delhi, but do not give them a job.
The scale of corruption multiplies down the ladder. With adjournment after adjournment given, the number of cases in Indian courts has piled up to almost 50 million, according to an estimate by the Union law minister in parliament last year. I have come across cases of subordinate judges refusing to let go of cases even after investigating authorities found no evidence and the aggrieved party himself had settled the matter to his satisfaction with the accused or the respondent.
In a democracy, the judiciary is the last bastion for the protection of the law and for ensuring transparency and fair play in society. If this bastion, too, is breached, the common citizen loses his freedom and lives in fear. The independence of the judiciary is of paramount importance. The answer does not lie in whittling down its independence or in obtruding executive authority into the judicial field through means such as interference in the appointment process. We want a free and fair judiciary, not an executive government that is all-powerful and strikes at the roots of democracy. Hence the approach taken by the Supreme Court on the National Judicial Appointments Commission proposed by the government was the right one.
Corruption in the judiciary is not new. As early as 1949, Justice S P Gupta of the Allahabad High Court was removed solely on the basis of his judgement. In 2011, Justice Krishna Iyer, one of the most reputed judges in the history of the Indian judiciary, wrote in an open letter to Rahul Gandhi, “The judicature, a sacred instrument with great powers to punish corruption, is itself corrupt. Not a single corrupt judge has been caught or punished.”
This is not confined to our country. In 2016, the United Nations Office on Drugs and Crime launched a global programme to promote a culture of lawfulness. It included the creation of a Global Judicial Integrity Network to share best practices and lessons learned on the fundamental challenges and new questions relating to judicial integrity and the prevention of corruption.
The Supreme Court had acquired a reputation for being upright and fair in the 1960s under the leadership of Chief Justice P B Gajendragadkar. But now we need to initiate a comprehensive process of reform.
It’s possible to devise viable solutions to deal with the substantial task at hand. First, the number of pending cases has to be brought down sharply. Not through a vast and financially impracticable increase in the number of judges, but by such means as plea bargaining, arbitration and mediation, and a much wider use of digital and audio-visual systems. Second, as in all other systems of governance, a reward and penalty system could be brought into the judicial world and judges judged on the basis of case disposal and performance assessment. Third, the Supreme Court could establish a vigilance system under its direct control to investigate complaints. Fourth, the penal codes could incorporate provisions for stricter punishment of judges and lawyers found guilty of corruption. Fifth, the jury system, which fell into disrepute after the Nanavati case, could be revived. Sixth, contempt of court provisions need to be placed within straitjackets to ensure that they are not weaponised by corrupt judges. Seventh, the judiciary must find ways of dealing with media sensationalism and its impact on judicial response.
There are many other changes that the legal system could itself devise to provide the people with a judicial system that safeguards the law, democracy and the Constitution. To use the words of the Dutch judge Marc Bax, now is the time for the legal system to “reflect on how a judge’s integrity is evidenced and how it can be seen to be believed by the public”.