Who will judge the judges?

In November 2010, two member bench of Supreme Court comprising of Justices Markandey Katju and Gyan Sudha Misra indicted some of the judges of Allahabad High Court for giving judgments in favour of parties represented by lawyers known to them. This “uncle judges” syndrome has put a huge question mark on the integrity of these judges. “There is something rotten in the Allahabad High Court” and it needs some “house cleaning”, the Supreme Court judges said.

What the judges said about the Allahabad High Court can be said about other high courts too. It is a much common practice where justice is delivered when the kith and kin of the judges fight for the right persons. As this is not always the case, so justice usually takes a back seat over fraternity.

Higher judiciary enjoys greater credibility amongst the people than any other pillar of governance. However, this credibility has been undermined by a number of incidents in the recent past. The refusal of the then CJI Balakrishnan to disclose the assets of the judges under RTI gave a big blow to the clean image of the higher judiciary. What exactly was the CJI trying to hide? The excuse he gave was that he held the information regarding the assets of the judges in a fiduciary capacity. Therefore he couldn’t reveal them. This lame excuse did raise many eyebrows on the intentions of the CJI. The same CJI is now being questioned in various cases involving the assets amassed by his kith and kin after he assumed the highest judicial position obtainable by a judge in India.

Further, the procedure for selection and removal of the judges has created much consternation amongst public-spirited individuals. The procedure gives total control to the judiciary thus compromising the doctrine of checks and balances much needed in a federal, democratic set-up. Also, the process lacks adequate transparency. There have been cases when the collegium has selected those judges who have a poor track record. The case of Justice Dinakaran is a case in point. Here the Supreme Court almost elevated him to the Supreme Court despite complaints of illegal land-grabbing against him. It was only when much hue and cry was raised by the bar council of Karnataka High Court that the collegium reverted its decision. Even now the judge is not removed but is merely transferred to the Sikkim High Court. It is a common practice for the CJIs to simply transfer the tainted judges to smaller High Courts as if imparting justice to these people holds no importance. This practice has been continuing since years without significant protest from the civil society mostly due to the fear of contempt of court.

Contempt of court provision in the constitution under articles 129 and 142 (for high courts and Supreme Court respectively) was incorporated to safeguard the judiciary from undue encroachments to its independence. However, the provision is misused by the judiciary to curb even healthy criticism against it. In 2007, the Delhi High Court held the journalists of Midday newspaper guilty for contempt of court for publishing an investigative story and cartoon about the former CJI Y. K. Sabharwal and sentenced them to four months of imprisonment. The journalists were later released on bail on the directive of the Supreme Court. Truth as a valid defense in contempt of court cases is accepted and the journalists here had concrete evidence against the said judge, yet were prosecuted. This is just one of several cases where judiciary has misused this power. It speaks ill of the judiciary and definitely needs to be reformed. It anyways goes against the principle of natural justice which says that “no one shall be a judge in his own clause”.

A prominent Supreme Court lawyer Prashant Bhushan recently filed an affidavit in the Supreme Court saying that out of the 16-17 CJIs, half have been of doubtful integrity. In his affidavit, he talks about various maladies that have inflicted the higher judiciary and need immediate redressal by the authorities. His affidavit can be found here: http://india.5thpillar.org/~pillar/india/daring-move-veteran-supreme-court-lawyer.html or here: http://www.scribd.com/doc/37841587/Prashant-Bhushan-s-Affidavit-in-SC

The credibility of our judiciary is at an all time low. It is important that it takes corrective measures before it gets slotted in the same league as our ‘beloved’ legislators. When there are no checks on the powers of individuals, they tend to misuse it unless they are of highest moral integrity. The judges have always been thought to belong to a higher moral ground but when the ground starts to sink the concerned authorities need to take quick actions. The Judicial Standards and Accountability Bill, if passed, should help in restoring the lost trust. It is important that the citizens of the country do not lose faith in judiciary. Else the only pillar of democracy that still enjoys some respect from the masses will lose its standing and that would be a dangerous scenario to be in for our democracy.

PS I read an interesting article on contempt of court jurisdiction here : http://www.hrsolidarity.net/mainfile.php/2007vol17no05/2576/