Many meanings of corruption

The Supreme Court’s recent reading of the law of contempt comes as a welcome relief

Written by UPENDRA BAXI | Published:March 6, 2017 12:13 am
judiciary, indian judiciary, law of contempt, courts, court rules, contempt law, judiciary corruption, india news, indian express news Everybody agrees that judgments, and accompanying interim orders, should not be sold and bought for a price. But other surrounding concepts await deeper analysis.

Not much has been written by way of scrupulous scientific research about judicial corruptibility, but much has been said about it. Several chief justices of India (CJI), incumbent justices, and superannuated justices have lamented the fact that the widespread systematic governance corruptibility has resulted in discrete acts of judicial corruption.

The narrative basically, even now, remains deeply hierarchical. It is heavily focussed on the district judiciary: Retired CJI V.N. Khare said in an interview that “corruption in lower courts is no secret”, and recommended a team of “dedicated judges” (mostly retired) to monitor and arrest its further spread. The second narrative suggests that the “rot” may have reached some high courts; and the origins of transfer of judges as a national policy lay firmly located in this narrative.

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The third narrative suggests that acts of corruption have reached even the shores of the Supreme Court. Shanti Bhushan (and Prashant Bhushan) created a perfect moral storm in 2010 by naming eight CJI among 16 justices who were allegedly corrupt. He gave the names in a sealed envelope to the Supreme Court and even dared it to prosecute them for contempt! And this narrative was embellished by the irrepressible Justice Markandey Katju, as late as 2015, to morally impeach many justices in “higher courts”.

The trouble with all these narratives is they are many sided. One, the allegation of corruption is rather easily made but is very difficult to substantiate. Trading in suspicion and even slander, is different from establishing guilt beyond a reasonable doubt. Second, allegations are mainly anecdotal and emerge from the Bar grapevine; the Bar’s passion and penchant for telling stories is well known. Gossip of today (as Michel Foucault once remarked) becomes the truth of tomorrow; and grapevine constitutes the rule and often assumes the visage of public truth. Third, “corruption” is hardly conceptualised.

Everybody agrees that judgments, and accompanying interim orders, should not be sold and bought for a price. But other surrounding concepts await deeper analysis. Is “son stroke” (where near relatives of a sitting judge practice in the same jurisdiction) a corrupt act? Do always buying of land and property by close relations of a judge evidence judicial corruption? What if a judge’s spouse is an independent professional or otherwise lucratively employed? Is a membership by incumbent justices of retired justices housing society a corrupt act? Does an informal agreement to head a statutory body or a commission prior, or on the eve of retirement, amount to corruption? Should past association with a firm of lawyers, or an individual counsel, be regarded retrospectively as a potentially corrupt act or at least a ground of judicial transfer? And, how is any appellate justice to be adjudged as performing a corrupt act under the recent NJAC judgment, which suggests Third Schedule (oath of office) obligation not to recuse? How is one to describe the varieties of judicial “misconduct” as different from impeachable offences?

Careful writing will draw some bright lines between corruptibility in general and specific acts of corruption, or folklore of corruptibility and the fact (actual incidence) of judicial corruption. There is thus a distinction between (as philosopher Seyla Benhabib counselled) “generalised” and the “concrete” other. Even as a folklore grows, facts are hard to come by or establish. The folklore matters as an “evidence” of widespread popular belief about judicial governance corruption. The dominant judicial narrative accentuates contempt jurisprudence, lest popular mistrust may grow and generate collective disobedience of court’s orders, and directions. But too frequent activation, or deployment, of contempt powers may also produce a chilling effect on freedom of speech and expression and of the media freedom to report.

The constitutional courts in India remain confronted by a democratic dilemma; they have tried to walk a fine balance but the belief in contempt power is so strong that media stories are routinely killed in the apprehension of protracted judicial proceedings. The Supreme Court of India breathes a fresh air when it virtually quashes the contempt action against Transparency International and the Centre of Media Studies. It rightly remarked that such surveys “instead gave opportunity to address the malady in the system”. A bench led by Chief Justice of India J.S. Khehar (comprising also Justices D.Y. Chandrachud and Sanjay K. Kaul) said the law of contempt would not “ordinarily” extend to interview and compilation concerning corrupt judicial practises (such as bribing and exercising influence). “Where will research go if this is contempt?” asked the Court.

This is welcome relief, but we must, however, note that it came after a 11-year wait! The learned CJI, around the same time, suggested a “mechanism” for taking a “second call” on government litigation. His Lordship estimated thus a 10 per cent case-load reduction. Of course, there is some linkage between the oft-noted judicial governance corruptibility and workload delays, providing a further argument for urgency of judicial appointments and elevation.

Judicial corruption (in the strict sense of buying and selling orders and judgments) is a serious menace to basic individual freedoms. It is also inimical to judicial independence and to the constitutionally desired social order. The constitutional process for the removal of justices need not be politically cumbersome, if a constitutionally sincere approach were to prevail. And this is one constitutional process that may not belong rightfully to the judiciary, lest it prove contrary to the rule of law maxim: No person shall be a judge in her own cause.

Justice K. Ramaswamy said wisely and well, as far back as 1995, that “criticism of a judge’s conduct or of the conduct of a court even if strongly worded, is, however, not contempt,” if it is “fair, temperate and made in good faith and is not directed to the personal character of a judge or to the impartiality of a judge or court”. And we may do no better than to adhere to this constitutional prescription.

The writer is professor of law, University of Warwick, and former vice chancellor of universities of South Gujarat and Delhi

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  1. K
    Mar 6, 2017 at 2:10 pm
    The corruption in judiciary reflects a larger picture of nexus between politics and judicial system
    1. A
      Mar 6, 2017 at 9:13 am
      If there is corruption in our departments of Justice , all that just reflects the fact : South Asian society still has to learn to differentiate between right and wrong , and then , select the right .
      1. I
        Mar 7, 2017 at 12:14 pm
        Successful practising lawyers make huge amounts of money whereas judges are paid a moderate fixed ry. Therefore, the judges have to be those who would serve out of a sense of duty. While technically, people may benefit through measures mentioned in the article, any official who is clean and wishes to be seen as clean will stay clear from any benefits other than his/her fixed compensation.
        1. J
          Jyotika Kalra
          Mar 7, 2017 at 12:02 am
          I hope this Judgement would encourage more such studies, that would highlight malady in the system on the basis of research. As on now corruption is very vague and except registration of case under the Prevention of Corruption Act, it has no other narrative to offer.
          1. M
            Mahender Goriganti
            Mar 6, 2017 at 3:16 am
            Very good article educational about a very complex matter. While it did provide the issues involved did not suggest how best we can reform the same and expedite the delivery of justice in a very timely manner or how to deal with remedy corruption in judicial system.
            1. S
              Mar 6, 2017 at 11:37 am
              Nice article explaining nitty- gritty of corruption or its perception prevailing in judicial system.As mentioned in article this malaise is quite prevalent in lower hierarchy,from there such "rot" rises to higher hierarchy.So is it not the right time to nip these buds in early stages prevents its tentacle to spread,create some short of fear among them if they fail their duty and inculcate a habit of honesty among them as these courts are first where large no of citizens approach for justice.Is it not the time for higher hierarchy to enforce them for speedy and fair trial?Hope in another article writer would provide some suggestion to fight these malaise of corruption?
              1. R
                Ramesh Chhabra
                Mar 6, 2017 at 3:29 am
                Respected Sir, your article shows that you are much worried day to day happenings in Indian Law/;br/gt;In my opinion Judges for Indian High courts, Supreme court may elevated/ promoted/ selected from Lower courts only, similar as an IAS is promoted from under/ Deputy Secretary to Secretary to Government of India.
                1. S
                  Shri Soni
                  Mar 11, 2017 at 12:55 pm
                  I wrote about 100 RTI's against systematic corruption, my findings are ;-lt;br/gt;A culture of impunity is created when people in power break the law,lt;br/gt; escape social or legal punishment, and then continue breaking the;br/gt; Impunity allows the powerful to get away with it – to break existinglt;br/gt; laws but also to exploit legal;br/gt; During 2010-2013 those in the Public Sector Undertaking (PSU) Newlt;br/gt; india urance company head office mumbai deliberately misread thelt;br/gt; notice(s) of the Central Information Commission (with copy tolt;br/gt; appellants ,e.g. the RTI applicant) to attend video;br/gt; I witnessed systematic loss of public money of;br/gt; Rs. 10000/- to 25000/- per person to claim habitual ,uncalled forlt;br/gt; Delhi tour to embezzle public money ..
                  1. S
                    SK Gupta
                    Mar 6, 2017 at 1:13 am
                    Congrats on your Article! My view as a major consumer of the Judicial system is that Most of the judges get unduly influenced. Some by money, some by other means, some just by friends and even acquaintances.! Some by petty prejudices also!
                    1. S
                      SK Gupta
                      Mar 6, 2017 at 1:17 am
                      Most judges think they are Mughal Badshahs and the litigating citizens petty thieves. Some become judges when their practice is not too successful,!
                      1. S
                        SK Gupta
                        Mar 6, 2017 at 1:21 am
                        Most judges, politicians and bureaucrats keep their Ill acquired wealth in Un-Declared gold biscuits and solitaire diamonds.
                        1. R
                          Mar 6, 2017 at 2:25 am
                          Its always a pleasure to read Prof Baxi who is honest and direct in his articles. Prof Baxi has appropriately covered many facets pertaining to the judicial corruption………His analysis is logical and based on reasoning.
                          1. D
                            Dr.Shrikant Kumar
                            Mar 7, 2017 at 8:48 am
                            As pointed out by the author, it is difficult to prove the corruption. Also, people do not come out openly of corruption charges against any judge due to fear of contempt of court. No right mind person of India will like to go to a court. That is why in spite of knowing that such and such judge is corrupt, no body comes out in the open. Once the contempt of court provision is removed from the system, then many cases of corruption in judiciary will come in the open.
                            1. O
                              Mar 6, 2017 at 7:19 am
                              An appreciable judicial reform measure example has been provided recently by our CJI when he declined a priority hearing demand of a star lawyer. May his tribe increase in the SC, high courts and lower courts. Many famous star lawyers collect mega fees and also manage Tatkal hearings for their rich and famous clients difft.courts. Such managed Tatkal hearings at the instance of star advocates needs to be braked henceforth in difft.courts of the country.
                              1. V
                                v b
                                Mar 6, 2017 at 2:43 pm
                                Judges need to be made to be accountable to an Authority, who is selected from among senior Judges, to be appointed as the Review Authority, one for about ten Judges. The accountability may cover adjournments for over one week, non-compliance of provisions of Civil Procedure Code, the time taken to dispose of a case being in excess, say, three months, initiative taken by a Judge for both a Peioner and Defendant being divested of an et and income thereon, delegation to a Registrar and a Commissioner the functions such as service of summons, execution of decree, recording deposition of a witness;br/gt;lt;br/gt;Each Judge should submit to Review Authority a self-declaration of ets and income acquired, as also the Liabilities, Expenditure and Investment incurred over every period of one year from January to December, not only in the name of the Judge himself but also his kith and kin.
                                1. V
                                  V. Ramaswami
                                  Mar 6, 2017 at 12:39 am
                                  The simplest way to stop judicial corruption would to be have judges declare their wealth and those of kin every year and monitor if it is reasonable given their income. After all, it was one of the points made by the SC in the disproportionate wealth case on Jayalalitha, Sasikala, et al.
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