The year 2004 started with a magistrate in Ahmedabad issuing warrants against the President of India and Chief Justice of India - for a price of only 40,000 rupees. The entire nation saw the videotapes. Then, in February, newspapers reported that the buildings of the Bombay High Court, the Gateway of India along with the famous Taj Mahal Hotel were up for sale. Apparently, two metropolitan magistrates and a notary in Mumbai signed affidavits “authorising the ownership” and “enabling their sale” by “Mohandas Karamchand Gandhi” and “Khan Abdul Gafar Khan”! Back in 1994, a print journalist bribed a Civil Judge (junior division) in Dakor (Maharashtra) and got arrest warrants issued against the then Chief Justice of the Bombay High Court, then Maharashtra Home Minister and former Union Minister VN Gadgil.
These recurring corruption scandals remind me of movie remakes: similar script, same directors, same producers, only different actors in different settings. Then, should we be surprised at the same outcomes?
Interestingly, such episodes of corruption are both bad news and good news.
Bad news because, we now know that even some of the honourable judges are no less corrupt than our netas or babus. The common man’s faith in Indian judiciary as the last-standing gatekeeper of her/his liberty has been wounded. But why should judicial corruption come as good news? Because, judicial corruption only reflects a systemic crisis and is driven by the existing rules of the governance game. This crisis is a great opportunity for the director (The Supreme Court) and producer (The Parliament) to bring in key reforms to minimize corruption and eliminate incompetence. Individual actors (the subordinate judges, the court officials or the citizens) have a limited role in the overall show – their behaviour generally follows the ‘script’ given to them.
Three key steps will help dramatically improve the script of the Indian judicial system:
First, Removing the corrupt from the present class of subordinate judges. Article 235 of our Constitution gives High Courts significant administrative and supervisory powers over their subordinate courts. The High Courts must not shy away from invoking these powers, especially in issues related to conduct and discipline of judges. When wisely applied, this (most under-utilized) self-correcting mechanism of Indian judicial system has yielded dramatically positive results. Consider this: even though reliable information on corrupt judges and court officers is available, they generally escape penalty, mostly due to inaction from their superiors. That was until the Bombay High Court directed the removal of about 150 subordinate court judges on grounds of corruption in the past couple of years. High Courts in Rajasthan and West Bengal also acted similarly to remove several tainted judges in subordinate courts. And in every single instance of appeal, the Supreme Court upheld the High courts’ decisions.
Second, improving the overall quality of incoming subordinate judges. This is necessary also because many higher court judges are drawn from the subordinate judiciary. It is therefore imperative that only the brightest and most eligible youngsters be selected at the level of District Judges. They should be recruited through a nationwide, truly competitive examination for the Indian Judicial Service (IJS). The Parliament should quickly create the IJS under Article 312 of the Constitution.
Third, ensuring the excellence of higher court judges. (Former) Chief Justice Bharucha himself once said that India has too many corrupt and inefficient judges in the higher courts. There is an immediate need to establish a National Judicial Commission (NJC; still in the proposal stage) that has the powers to both recommend appointments as well as effect dismissals of judges in higher courts. Article 124 of the Constitution should be suitably amended to facilitate the creation of the NJC.
The existing rules in Indian judicial system have repeatedly produced delayed justice, incompetent and corrupt judges and court officials. Only when the script is significantly improved can our judiciary serve the needs of our democracy more effectively. Until then, we Indians are waiting for the Parliament and the Honourable Supreme Court to give us a ‘great Judicial hit’!