The Indian courts are not short of admirers who respect their integrity and ingenuity. Most recently, their pursuit of public interest litigations has been praised by Pakistan's beleaguered Chief Justice Iftikhar M. Chaudhry. But there is also plenty of data to show that the citizens’ confidence in the judiciary is waning, and the latter is doing little to increase the appearance of accountability.
A Center for Media Studies survey two years ago found that 77 per cent of the public perceives the judicial system to be corrupt. In fact of the 11 public services covered in the survey, the judiciary (along with land administration) emerged as the most corrupt right after the police. Almost half the households interacting with it reported giving bribes for services like passing favorable judgments or speeding them up, and for obtaining affidavits/ registrations or bail.
A shortage of judges is usually blamed for the backlogs and corruption in our courts. Indeed our judge-population ratio is among the lowest in the world and worsened by vacancies, which in 2005 stood at nearly 21 per cent in the High Courts alone. But the above survey shows little correlation between manpower and corruption. For example, Bihar has almost the same number of judges per lakh of the population as Rajasthan, but reports a 14 per cent higher incidence of bribing. Punjab and Kerala have similar judge-population densities, but Punjab’s judges appear to be 54 per cent more corrupt!
It is also common for judges to flout the code of conduct that disallows them from hearing cases in which they have a conflict of interest. Consider that in 2003 the Bar Council of India found a shocking 26 per cent of High Court judges defying the prohibition against having relatives practice in their courts. The most damning indictment was provided by then CJI Sam Piroj Bharucha, who said in 2002 that one in every five judges might be corrupt.
Sheilded by comtempt powers?
Yet those who question the conduct of judges are punished time and again. The Delhi High Court, which has just found four people from Mid Day guilty of contempt of court “in the garb of scandalizing” a retired CJI, has earlier pronounced editor Madhu Trehan and four others of the fortnightly magazine Wah India similarly guilty. Their crime: circulating among senior lawyers a questionnaire designed to evaluate judges. In 1999, it was the Supreme Court that pronounced this verdict against Arundhati Roy: Her crime: criticizing its approval of the Narmada dam project.
While the court said Roy was guilty of a “vicious stultification and vulgar debunking” of justice, others argue she was merely exercising her citizen’s right to comment on issues of public interest. If the courts continue to take the former position, continuously stifling those who speak against them without checking the corruption in their own ranks, their legitimacy will get eroded over time. And no one will be the better off for that.
Eminent jurist SP Sathe fittingly called the judiciary the “salt” of our democracy, asking: "When the salt have lost his savour, wherewith shall it be salted?" How will a democracy already tainted by dirty politicians survive a loss of faith in its judiciary?