November 2007 Edition

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Civil Society News
New Delhi

HAS the judiciary in India sealed itself off from all accountability to society? Is an outdated law on contempt being used as a shield by judges? Do recent judgments have an elitist and anti-poor bias? These and other troubling questions have been given public attention by the Campaign for Judicial Accountability and Judicial Reforms (CJAR) in its search for a transparent and accessible justice system for India. At the core of the current storm are allegations that a former Chief Justice of the Supreme Court, Y.K. Sabharwal, misused his position to favour his sons and some builders. Such has been the force of the campaign that the former Chief Justice has found it necessary to reply in a newspaper article to the charges against him. But demands that Justice Sabharwal face an independent inquiry have continued to grow and now come from respected legal luminaries who believe that the reputation of the judiciary as a whole is at stake. Civil Society spoke to Prashant Bhushan, senior lawyer and relentless activist, about the accountability campaign and what it is seeking. Bhushan alleges that there is corruption in the judiciary because it is not answerable to any external institution. “This means a judge cannot be subjected to any action. So, a judge can be responsible for any kind of misconduct but there is nothing that you can do to him.”

“It is an alarming situation in which we have a judiciary that has enormous powers that allow it to pass orders on just about anything at the drop of a hat and yet has no accountability,” argues Bhushan. Added to this is the law on contempt, which effectively means that it is not possible to publicise or raise allegations against a judge because that is equivalent to lowering the authority of the court. All complaints against judges have to go to the Chief Justice and thereafter can only be dealt with through an internal process of the judiciary. This, Bhushan points out, is no substitute for an independent authority and has resulted in no serious action. A judge can be impeached, but for that to happen the signatures of 100 MPs are needed. MPs won’t sign unless there is wide publicity given to charges and a public outcry to match.“The judiciary has remained a very opaque institution partly because of the fear of contempt, says Bhushan.“People don’t talk about, don’t write about the judiciary, at least they don’t right about it freely because of this fear of contempt.”Bhushan points out that this is a law which is colonial in its origins. “It is not onlycolonial but, as has been pointed out by Fali Nariman in an article, it was recommended by a committee that it should be abolished for England but retained for a colony where there are parts of the population that need to be subjected to judicial terror. That is the origin of the law and it is shocking that it should continue to exist in this country.” Excerpts from an interview with Prashant Bhushan:

Your campaign has raised many questions in the minds of ordinary people about the judiciary. What is the system of judicial accountability that you are looking at?

We have said first of all scandalising the court or lowering the authority of the court must be deleted from the definition of contempt. We must revert to the American standard which is clear and present danger to administration of justice. Secondly, we have said that we need to have an independent national judicial commission which will be independent of the judiciary and not an in-house body of the judiciary. It will be a constitutional body that can act independent of Parliament, the government and the judiciary. It should be like the Election Commission. It should have the power to investigate complaints against judges and take whatever action it deems fit, including the removal of judges. We have proposed the model for that, but unfortunately the judiciary wants it to be an inhouse body if at all. They feel that there is no need for any body. They claim to have set up some informal in-house procedure but which they hardly ever activate. Except in cases where there is a public scandal. Only then do they activate the inhouse mechanism. You see they say you should not publicise even if you have evidence to show that the judge has committed serious misconduct. You should send it to the Chief Justice. He will constitute an in-house committee because we should not publicise charges against judges. What our experience has shown is that unless you publicise the charge and it becomes a public scandal, they will never investigate it, they will never activate their in-housebody. They will just push the charges under the carpet. So it is a Catch 22 situation: if you publicise we will haul you up for contempt, if you don’t publicise we will push it under the carpet. Which means effectively you can’t do anything against corrupt judges even if you have evidence.

How many times has there been an internal assessment of a judge?

Very few, I think just two or three cases. And this was when it had become a scandal. For instance, some judge in Rajasthan who was reported by the media to have asked for women and so on…

So the instances are few and far between.Now in the case of the supra body that you have proposed, who would be appointed to it and how?

It should be a five-member body headed by a chairman selected by all the judges of the Supreme Court. Another member should be selected by all the Chief Justices of the high courts, a third member should be selected by the Cabinet, a fourth member by a committee of the Leader of the Opposition in the Lok Sabha and Rajya Sabha and the Speaker and a fifth member by a committee of the chairman of the human rights commissions, the Comptroller and Auditor General and the Chief Central Vigilance Commissioner. Once selected, the members of the body will enjoy a tenure of five years during which they will not be subject to anybody’s control.

Has this been discussed at any serious level, has it been formally rejected…

The judiciary has said that if at all there is such a body it must be an in-house body. It must consist only of judges. There must not be any outsider because that will compromise the independence of the judiciary. They hold that independence of the judiciary means lack of any external accountability, which is absurd to my mind.

How are judges held accountable in other societies?

In England they have a judicial complaints commission and an ombudsman to examine complaints against the judicial complaintscommission. In America too they have some such system which varies from state to state. But nowhere in the world does the judiciary have such total lack of accountability as in India.

Is the judiciary’s unwillingness to be held accountable, as you see it, a recent phenomenon or has it been a consistent trend?

Over the years, as the reputation of the political class has fallen in our society, the judiciary has moved in to occupy that space. They have gradually seized power from the executive and the legislature. I’m not saying that this is unjustified. After all if the executive and legislature don’t act, then the judiciary must step in to protect the fundamental rights of the people. But this insulating themselves from all accountability, even from registering of FIRs and so on --- this is something that has happened only over the past 15 years as the power of the judiciary has grown. They have felt emboldened to insulate themselves further and further. Even under the Right to Information (RTI) Act. This is in fact nothing short of a public scandal. After having given resounding judgments that RTI is a fundamental right and even political candidates are obliged to disclose their assets and antecedents, the judges have sought to box themselves out. They have been emboldened to do that because they feel they are now a law unto themselves and nobody can get them.

Is the judiciary therefore double-faced. After all it is the same judiciary that has taken upon itself to play an activist role in the public interest.

It is not the question of a double face. Everyone would like to avoid accountability. The judiciary is no exception.

So this whole question of judicial accountability will have to rest with the politicians. It will have to come as part of a political agenda.

What we have seen is that politicians don’t mind corruption in the judiciary so long as it doesn’t hurt them. They have found that a corrupt judiciary doesn’t hurt them. In fact it helps them. The more corrupt the judiciary is the less likely it is to hold politicians to account. The politicians are very happy with a corrupt judiciary solong as the corrupt judiciary doesn’t trouble them too much. None of them have a real stake in cleansing the system. The real stake is with the common people who are the consumers of justice. It is the common people who are suffering because of this corrupt, unaccountable and now elitist and anti-poor system. So unless the consumers of justice come together, put up a strong campaign and win public opinion on this issue, nothing is going to happen. Until politicians see this becoming a political issue they are not going to make any change in this system.

That is why we have set up this campaign. The whole objective of this campaign is to get common people, the consumers of justice involved.

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