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Saturday, March 30, 2002

With the approval of the Bill to replace POTO by the joint session of Parliament, one of the most contentious chapters in our legislative history comes to a close. Now the ball will be in the law courts. Judiciary is the last bastion of defence against abuse of authority and arbitrary exercise of powers. We need a competent and clean judiciary, particularly in subordinate courts, to render justice and protect our liberties.

All of us complain about the decline of our institutions of state and growing corruption and arbitrariness. No organ of state is exempt from this decay. But much of our discussion stops with wailing and self-flagellation, and there is little tangible and practical action to improve things. We have come to accept corruption and incompetence as the natural order of things. There are endless controversies, fiery speeches, commissions of enquiry, parliamentary walkouts and marches on the streets. Then it is business as usual until the next juicy scandal.

In this somewhat depressing milieu of cultivated status-quoism, Maharashtra High Court has shown refreshing courage, leadership and resolve to improve the quality of judiciary. Some years ago, a metropolitan judge was arrested after his links with mafia became public. People started whispering about the decline of judiciary too. In this backdrop, Mumbai High Court proved that it is possible to significantly improve things.

The level of integrity of individual officials is common knowledge to those who are familiar with government functioning. Despite this endless talk, the corrupt officials go scot-free. Mumbai High Court, with its great tradition of integrity, independence and competence, decided to remove this canker of corruption. Mumbai Bar too is one of the most progressive in India, free from the usual communal and caste prejudices. The High Court has complete administrative control over subordinate judges. There is a notional appeal to the Governor on the administrative orders of the High Court, but as per Supreme Court judgments the Governor again is bound by the advice of the High Court in deciding the appeal. But so far these powers have not been adequately exercised, and judicial rectitude suffered on account of this indifference.

But now Mumbai High Court acted decisively to cleanse subordinate judiciary. Over the past 2 years, over 150 judicial officers (over ten percent of the total) in Maharashtra have retired voluntarily or compulsorily on allegations of corruption, impropriety and incompetence. Special inspecting judges looked into complaints of corruption. If there are credible complaints or prima facie evidence of wrongdoing, the judge in question is given the option of retiring with full benefits including permission to practice law if he chooses to do so. The other option is to face departmental enquiry and risk dismissal with no retirement benefits and no right to practice. Most judges chose to retire without demur. A few resisted, and were dismissed.

Some went in appeal to the Supreme Court. The Court has held that the departmental authorities have unlimited powers of framing rules of conduct and rules of enquiries, freedom of action untouched by Criminal Procedure Code and Evidence Act, or even rules of natural justice in case of administrative orders, full discretion in appreciating evidence, authority of awarding any punishment after following rules of natural justice, and immunity from reappreciation of evidence and reversal of orders by judiciary.  As  Mr BJ Misar, a retired IPS officer from Maharashtra says, the impression that our legal system or judiciary obstructs anti-corruption measures, or that the Constitution gives undue protection to corrupt public servants is wrong.

What Maharashtra High Court accomplished is a cause for celebration. We can now say with confidence that corruption in judiciary in a large State has been completely eliminated. This is no small achievement. Maharashtra is larger than 90% of the nations. If we can clean up a whole organ of state in one major State, we can eliminate the scourge of corruption from all branches of government all over India.  All it takes is will, professionalism, painstaking hard work and transparent action.

Some may cavil at allowing officials suspected of corruption to retire.  But the impossible best is often the enemy of the possible good.  When the problem is so large, swift action and significant results are far more productive.  We need to act quickly and decisively to fight corruption and maladministration everywhere.  And we should learn to celebrate these wonderful successes and replicate them.

India suffers from a crisis of confidence on many fronts.  The nation owes a debt of gratitude to Maharashtra High Court for showing us that big improvements are possible in our society.  We should capitalise on that and act decisively. So far our politicians and bureaucrats have been complaining most of the time, and have become a part of the problem and not the solution.  The example of judiciary in Maharashtra should open our eyes and make us look for innovative and courageous ways to improve our governance.



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