Mainstream, VOL XLIX, No 1, December 25, 2010 (Annual 2010)
Judicial Corruption in Profusion Must be Wiped Out without Mercy
Let Us Have A Corruption-Free Bench Everywhere
Friday 31 December 2010, by
The judiciary enjoys vast powers as they are final and infallible, so powerful that when an executive violates the law the judges can quash their action and issue directions in exercise of the writ power. When Parliament makes law and transgresses the Constitution or issues orders beyond the bounds of fundamental rights, the court can demolish that order and action but when the higher courts are guilty of unrestrained violation there is no instrument to correct them nor is there a code to deal with their delinquency. Every Constitution, particularly the Indian one, has a social philosophy: we are a Socialist Secular Democratic Republic. If these mandates are violated and good behaviour expected of them is thrown to the winds, there is no authority to call them to order or to undo their misbehaviour.
‘Judges are not essentially different from other government officials. Fortunately they remain human even after assuming their judicial duties. Like all the rest of mankind they may be affected from time to time by pride and passion, by pettiness and bruised feelings, by improper understanding or by excessive zeal’. —Hugo Black
David Pannick has this to say in his book on Judges:
Mr Justice Jackson of the US Supreme Court observed in 1952 that ‘men who make their way to the bench sometimes exhibit vanity, irascibility, narrowness, arrogance and pother weaknesses to which human flesh is heir’. It would be surprising, indeed alarming, if some of the eminent legal minds that constitute the English judiciary did not, on their rare off days, act injudiciously. This was recently recognised by Lord Chancellor Hailsham. Those who sit in judgment occasionally become subject to what he called ‘judges’ disease, that is to say a condition of which the symptoms may be pomposity, irritability, talkativeness, proneness to obiter dicta (that is, statements not necessary for the decision in the case), tendency to take short-cuts.
The pity is there is no therapy under the law against this pathology to save impeachment which is a political remedy aggravating the malady. Worse than these alarming vices is what Lord Acton pointed out, ’power corrupts, absolute power corrupts absolutely’. The people in a democracy have a right to criticise the judiciary which is expected to be transparent, independent, well behaved and free from bias and possessing infallibility. Since the last word on every dispute of consequence lies in the robed brethren their selection has to be done with the utmost care after investigation and critical appraisal of their politics and class prejudices (vide Prof. Griffith in The Politics of Judiciary).
‘Where are your impartial judges? They all move in the same circle as the employers, and they are all educated and nursed in the same ideas as the employers. How can a labour man or a trade unionist get impartial justice? It is very difficult sometimes to be sure that you have put yourself into a thoroughly impartial position between two disputants, one of your own class and one not of your class’. —Lord Justice Scrutton
THE most menacing danger to the cause of justice and forensics is corruption, communalism and nepotism, the first of which has affected in an astronomical measure in recent years the Bench even at the highest level. That impeachment in Parliament of guilty judges is impotent and an outrage is clear from Ramaswamy’s case. Is there a marginal exaggeration in the charge of corruption made against Chief Justices by Prashant Bhushan supported by Chief Justice J.S. Verma? In season and out corruption charges about judges are escalating bountifully. Impeach-ment is no solution at all. Arrears are mounting, corruption is rocketing. Parkinsons Laws (increase in numbers) and Peter Principle (aggravation of incompetence) is no remedy. An effective answer is an Appointment Commission and a Performance Commission with large powers—to reject appointments suggested by the executives and made public before swearing in and the Performance Commission to investigate judicial misconduct with power to remove if proved. These must be part of a judicial code of conduct by amendment in the Constitution. Every citizen must have a voice about candidates proposed. Why? The Roman adage says: ‘Whatever touches us all should be decided by all.’ Our judiciary is still a prized treasure but they must have a college and a periodical course so that we may be able to say of our robed brethren in the language of Augustus.
‘It was the boast of Augustus that he found Rome of brick and left it of marble. But how much nobler will be the sovereign’s boast when he shall have it to say that he found law dear and left it cheap; found it a sealed book and left it a living letter; found it the patrimony of the rich and left it the inheritance of the poor; found it the two-edged sword of craft and oppression and left it the staff of honesty and the shield of innocence.’
The author, an unswerving champion of human rights and civil liberties, is a former Supreme Court judge.