Corruption, Law & Society - whither the Indian Judiciary

The summer vacation during our childhood days always held special charm for us. We eagerly looked forward to visiting our grandparents at Averi, a village near Palampur in Himachal Pradesh for it presented an opportunity not only to escape scorching summer heat of the Punjab plains but also to meet all our cousins. Unrestricted play hours and unlimited access to fresh fruits from the grandpa’s orchard were two great attractions of those times but the true bonus came in the form of real-life stories of the upright and ever toiling officers touching various aspects of the public life as narrated by the grandpa. These generated deep admiration for those walking tall and straight in the face of grave temptations.


During those days, the honest officers were respected and assigned responsible positions and the corrupt were considered as outcaste, never allowed to hold any sensitive position. Being honest used to be a matter of pride then. Even Politicians during those days enjoyed respect from one and all. But things are not the same anymore. The values of life have undergone sea change and so has the mindset of the people. The honest are no more held in high esteem but are shunted to obscure places and assignments and looked down upon. The tormentors of the honest and upright officers find virtues in corrupt ones by tagging them as ‘performers’ and giving them plum assignments, which help in personal enrichment of the both the benefactor and the beneficiary.  The success and status of an individual is measured in terms of affluence. The austere lifestyle of the honest officers now invites snide remarks and ridicule.   


I am personally aware of the fate of many honest officers who have paid the price for their uprightness and continued to suffer in silence. Politics has become a “profitable profession” for criminals. The unholy nexus that has formed between the politicians, bureaucrats and criminals over a period of time, is playing havoc with the social and moral fabric of our society. The common man has to suffer and pay the price of unabated moral, ethical and financial corruption.


At a time when the ramifications of failure of both the legislature and the Executive, in performance of their duties were felt on the public life, judiciary stepped in to stem the rot. There was a phase in public life when judiciary found itself duty-bound to intervene in almost every sphere of public life that was afflicted by the inaction or biased action of the legislature and executive whenever brought to its notice through what is commonly known as public interest litigation (PIL). The Apex Court accepted the concept of PIL by laying necessary guidelines in December 1988 under the leadership of the then Chief Justice of India Hon’ble Mr. Justice P. N. Bhagwati. The mechanism of PIL rendered remarkable service to the society and helped the common citizens, to raise issues of public importance before the Apex Court which not only hauled up the legislature and executive when found wanting in performance of their assigned duty but also provided relief to those who were affected by action or inaction of the authorities concerned.


The institution of PIL gradually lost its effectiveness basically for two reasons. Firstly, some unscrupulous elements started using this as a means of attaining personal benefits or for settling personal disputes in the guise of matter of public importance. Secondly, to overcome the consequences of the judgment of the Apex Court in PILs, the government started amending the relevant legal provisions retrospectively.


Unfortunately, the era of judicial activism did not last for long and eventually gave in to judicial favoritism. This is evident from the fact that the same Apex Court which at one point in time advocated protection of the fundamental rights of the common citizens and propounded the principle of ’Polluter to Pay’ in the case of T. N. Godavarman Thirumalpad v. Union of India [WP (C) No.  202 of 1995] and formulated guidelines in the matters related to pollution in the case of M. C. Mehta v. Union of India [WP (C) No. 13029/1985], did not hesitate in permitting construction of shopping malls and residential complexes by the Army in forest area that was supposed to have been protected under its order dated 12 December 1996 in WP (C) No. 202/1995 with WP (C) No, 171/96, as a fait accompli.  Does this mean that the persons violating law should go unpunished as every act of violation could be validated on the ground of fait accompli? The most shocking fact was that a senior lawyer appeared for both sides in this matter before the same bench headed by the then Chief Justice of India. The reputation of judiciary has been tainted and today even the judges are under scanner.


Earlier it was seldom that one used to talk about the rot in the judiciary as unscrupulous elements were considered to be an exception in this dignified profession and the system itself was robust enough to take care of this affliction. Now it is so common to read and hear the eminent names embroiled in different controversies.


The media stories about involvement of Session Judge J.W.Singh of Bombay, Former Judge Arun Madan of Rajsthan High Court, and Former Judge Shamit Mukherjee of Delhi High Court and involvement of few Judges from Karnataka High Court in Sex scam are still fresh in public memory. The media reports have enlightened citizens who are now aware of the controversy involving Mr. Justice V.K.Jain who has recently retired as Chief Justice of Punjab and Haryana High Court, where the Apex Court for reasons best known to themselves refused to part with the information about proceeding initiated against Justice Jain for judicial misconduct. Incidentally just before retiring Mr., Justice Jain kicked up another controversy by recommending names of few to be elevated to Bar. Further common citizens have not forgotten the controversy involving Mr. Justice Jagdish Bhalla of UP High Court now CJI of Himachal Pradesh, Justice S Ashok Kumar who has been transferred from Chennai High Court to Andhra Pradesh High Court.  The Government’s denial to investigate the allegation against Mr. Justice Y.K.Sabharwal (Retd) Ex Chief Justice of India on the ground that there is no provision under the law is questionable. Once the retired judge does not enjoy any immunity then where is the question of immunity. He is also governed by the Article 14 of the Constitution as all are equal before law.


The issuance of warrants against President of India and the then Chief Justice of India by a lower Court in Gujarat is a matter the still haunts memory of many. The worst part was that the then Chief Justice of India Hon’ble Mr. Justice V.N.Khare, accepted in public media existence of the lawyer’s Judges nexus in lower Courts little realizing that the same nexus also exists in almost all the High Courts as well as the Apex Court itself.


I had the benefit of addressing His Excellency Dr. A.P.J Abdul Kalam on 21st April 2004, a day after most of the sitting judges of Punjab and Haryana High Court went on mass leave. His Excellency after going through my presentation expressed deep anguish. The issue assumed importance when His Excellency pressed for Judicial Accountability Bill which has been diluted to such an extent that it is impossible to punish any judge for his/her misconduct. One wonders when there are so many cases are pending before the Apex Court how the Hon’ble Judges would have time to hear the complaints against brother Judges. The recent incidents of cash at judge’s doorstep at Chandigarh and involvement of about 36 judges including sitting judge of Apex Court and some of the sitting Judges of Allahabad High Court and lower courts have further eroded the credibility and accountability of the Judicial system in India. Both the aforesaid incidents and the initiation of proceedings against Chief Justice of Kolkata High Court raise the serious doubts on selection process for appointment of the Judges of the High Court.


The Central Bureau of Investigation has been given green signal to investigate both the Ghaziabad PF Scam and Cash at Judges Doorsteps at Chandigarh. But the moot question is whether the Apex Investigating agency is equipped to handle the investigations in terms of the competence and the will? When the Agency itself is under cloud for conducting tardy investigations against politicians and a few murder cases, one can not expect the same agency to conduct fair and impartial investigations when Judges of Supreme Court and High Courts are involved.


Unfortunately, the Apex Court has reiterated several times that laws enacted by Parliament have to be implemented. But once the issue of implementation of Right to Information Act 2005 is raised, the same Apex Court without any legal ground refuses to implement the same and claims immunity that it is not applicable on them. The fear being the Judiciary would be exposed. The worst is that the Department of Justice, Ministry of Home Affairs responsible for maintaining the details of appointment of the Judges, their salaries, expenses etc, refuses to part with the information about qualification of judges on the ground that it is maintained by the Apex Court.


The Apex Court in various judgments has reiterated that the justice delayed is the justice denied. Precious little has been done by the Judiciary in this regard. There are more than 2.5 crore cases pending before trial courts involving nearly 1.8 crore criminal cases as admitted by the CJI while hearing a PIL. The CJI further commented that ‘it is easy to delay criminal trials in India’ [2008 (229) ELT- A 192]


Even the Tribunals have been smitten by the “easy money” bug. The arrest of Income Tax Tribunal Member of Kolkata and dismissal of Mr. P.S.Bajaj, Member of Punjab VAT Appellate are the pointers towards the rot that has started surfacing in the Tribunals. The issues related to misconduct of some of the members of the Central Excise, Customs and Service Tax Appellate Tribunals continue to appear in various prominent law journals. I had the benefit of appearing before some of the State Commercial Sales/Commercial/VAT Appellate Tribunals and found that the position in some of the States is so bad that the slabs of “Suvidha Shulk” for granting relief had been fixed. No relief can be expected unless that amount is paid.


The question arises who is responsible for the rot that has set within the system? Being a part of the Committee on Judicial Accountability Campaign, I had the benefit of discussions with some of the senior members of the campaign. In my view the Judges are also part of the same society in which we have grown up. Many of them have been elevated from bar to the Bench. Therefore, the most important issue is whether as “Lawyers” we are discharging our duties towards society in a manner we are expected to? The Key Campaigners were uncomfortable in answering my questions. Let me share these questions with you and let us see whether we can find answers or not:-


a)      How many Senior Lawyers practicing, take up the cases of the poor without charging fee for appearances before Lower Court/High Court/Supreme Court barring a few exceptions;



b)      When some of the Senior lawyers charge waiting fee from the Clients in case the matter does not come up on Board, how can they claim that they are rendering services to the Society particularly when they have made themselves unaffordable to majority of the population;


c)       How many lawyers have actually resisted the unfair demands from the Members of the Bench? This issue becomes important in view of cash at judge’s doorsteps.


d)      How many lawyers knowing fully well that the Judge being selected is incompetent or corrupt have actually raised their voices?


e)      How many times the Bar Associations have actually resisted appointment of an Additional Judge who is/was tainted? This assumes importance in view of the controversy involving Chief Justice of Kolkata High Court, who was involved in a fraud even before he was elevated to Bench.


The politicians and judicial luminaries both serving as well as retired have raised much of hue and cry about accountability of judiciary.  The much touted 16-point Code of Conduct that was adopted in 199o has almost been forgotten.


One of the points in Code of Conduct by the judges is that the settled principle of law shall not be disturbed and the judges shall pass speaking judgments.  How many actually follow the code pronounced in 1990 which is a difficult task instead how many flouts is the easiest one.  For instance, The judgment and order in case of Sirpur Paper Mill case has unsettled the well-established Principle of Law holding forte since 1963.  The judgement and order in case of Laghu Udhyog Bharti in which case, the judgement was pronounced without dealing with the issue of constitutional validity of imposition of the Service Tax and the matter was decided in a manner opening flood gates of more litigation to follow for a number of years. The judgement and order in TC case No.9/90 in case of Modi Sugar Mills, though appears to follow settled principle of law in case of Malaprabha but actually defies the same without any plausible reasoning. Similarly, the judgment and order in case of Dr. Chander Bhan vs State of Punjab shall have the effect of encourage medical practice by unqualified Doctors.


Now, as per media reports [(The Times of India – 17-09-2008)- 2008 (229) ELT-A-193] the sitting CJI has sent out 12-point model code of conduct for subordinate judicial officers in connection with visits of Chief Justice and judges of High Court requesting them to adopt it. The question is that why code of conduct for visits only and why not to have code of conduct for disposal of cases? Once the apex Court has forgotten its own code of conduct “who would implement the 12-point code and how” is a million-dollar question.


It is also a matter of common knowledge that the litigation can be protracted for couple of years by the counsels of both the parties in connivance leading to huge number pending cases before the Lower and High Courts. The pendency becomes a serious issue as it was once admitted by the sitting CJI of India when it appeared in media (Times of India, New Delhi-16-09-2008), [2008 (2290 ELT A—192]. It is a matter of record that cases which caught media attention were disposed off speedily.


The arguments put forth by the Défense counsel in connivance with the Prosecution Counsel in case of BMW’s (Nanda’s case) the BMW became truck overnight and delayed the trial. Who cares? The Investigating team that had done a wonderful job was reduced to a bunch of fools within few seconds. The unholy nexus between both the Senior and famous Counsels was exposed by NDTV. But it is impossible to keep track of many Khan and Anand who are practicing at Bar and continue to carry on with their hidden agendas with impunity before various Courts throughout the Country.