Issue 56 Vol III, January 31, 2008

L A W  &  J U S T I C E

Indian judicial system on a rocky path
Joginder Singh Toor

A report by Transparency International, the “Global Corruption Report 2007” has sounded a “wake-up call not just for India’s legal system, but for society and the State itself”. Upendra Baxi, an Indian jurist, a former vice-chancellor of Delhi University and professor at the University of Warwick in Britain says that this report “confirms what we have known for years and casts a shadow on the integrity of the judiciary. It also calls for urgent, drastic remedial measures”.

The report covers only the lower or subordinate judiciary and excludes the judges of the High Courts and Supreme Court. But S.P.Bharucha, the then Chief Justice of India in January, 2002 had said that 20% of the higher judiciary might be corrupt and this statement has not only been reiterated by his successor Chief Justices of India but also by Dr. Manmohan Singh, Prime Minister of India. They  not only confirmed the corruption in higher circles of judiciary but also felt concern that it has started permeating out.

Judicial corruption in India is attributable to number of factors including “delay in the disposal of cases, shortage of judges and complex procedures, all of which are exacerbated by a preponderance of new laws” observes  the T.I. The States involved in the litigation, the high prices of properties and rival competitive concerns and interests of multi-nationals in business ventures and property acquisitions are other attributable causes widely accepted. The report of the Berlin-based T.I  certainly embarrasses the India’s judiciary for its own reasons. No case of judicial corruption has ever led to bringing the culprit to justice under the Indian system of legally impeaching a judge. The grounds for removal of a judge contained in Article 124 include his misbehaviour in the due discharge of his duties, encasing crossing the limit of honesty, fair delivery of justice and rising above fear or fair. V.Ramaswamy’s impeachment proceedings of 1993 are an indicator of the complexity and toothlessness of the procedure evolved in the Judges’ Inquiry Act,1968 which is sought to be replaced by a Judicial Commission or Judicial Council Act.

The huge pendency of cases, as of February,2006, with 33635 cases pending in the Supreme Court, 33,41,040 cases pending in various High Courts and over 3 crore cases pending in the lower courts led, in 1999, to an estimation that “at the current rate of disposal it would take another 350 years for the disposal of pending cases even if no other cases are added”.

No doubt the ratio of judges per million population in India, is as low as 12 to 13 compared to 107 in the U.S., 75 in Canada and 51 in Britain, but this by itself should not lead to corruption.

The T.I.,2007 report although reveals a marginal improvement in perceived level of corruption in our country but it does not exonerate it from the vice. The Corruption Perception Index (CPI) looks at public sector perceptions in 180 countries and territories. It draws its conclusion on expert opinions and surveys. It scores country’s corruption index on a scale from 0 to 10, with zero indicating highest level of corruption and 10 the minimum level. India has registered an integrity score of 3.5 against 3.3 in 2006 and 2.9 in 2005, an improvement of 0.5 in 2 years. India now ranks 72 among 180 countries against 70 out of 163 in 2006 and 88 out of 159 countries in 2005. Even Bhutan is higher than India with 5.0. Although India is higher than other South Asian countries such as 3.2 of Sri Lanka (94), 205 of Nepal (131), 2.4 of Pakistan (138), 2.0 of Bangladesh (162). India is much below than South Africa (5.1), Namibia (4.5), Seychelles (4.5). It has to cross a long distance to reach the score of 9.2 and above achieved by developed countries led by Denmark, Finland, Newziland, Singapore and Sweden. The aggravating factors in judicial corruption are, that higher courts of India are shielded from public scrutiny. According to expert opinion they are encouragingly turning conservative and “they have handed down judgments which abridge or abolish labour rights, dilute environment, promote business interests and uncritically support globalization”.

“There are no easy solutions of the problems of making judges accountable” feels Mr. Baxi but he pins hope on “some interim partial measures in the appointment of judicial ombudsmen from two highly regarded statutory bodies, the Election Commission and Comptroller and Auditor General (CAG) of India. As according to him nothing prevents the CAG from initiating an independent review of the performance of the judiciary. The CAG could produce highly credible and objective reports and help kick start a process of permitting transparency and accountability. The attempt of India’s judiciary to contain the new legislation for creating a Judicial Council confined to judiciary only, has at the same time to be strongly resisted. No doubt the judiciary was created as an impregnable castle, inside which or through the walls of which nobody could enter, pierce or see through. But the time has come when people want to know and to see as to what is happening inside the castle.

[The author is a senior lawyer based at Chandigarh, jogindersingh_toor@yahoo.com]

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