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Aren’t our judges Indian?

india Updated: Dec 08, 2009 23:02 IST
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The declaration of assets by Supreme Court judges recently is a belated step in the right direction. By challenging the direction of the Central Information Commission in the high court, and then appealing against its decision, the Chief Justice of India (CJI) gave an impression that instead of being a paladin of impartiality and transparency, he was more interested in protecting his peers. This voluntary move appears to have been taken under pressure from civil society.

Justice Shylendra Kumar of the Karnataka High Court hit the nail on the head by challenging the CJI’s authority to speak on behalf of all judges. The CJI consistently took the stand that if Parliament makes a law for declaration of judges’ assets, they would comply. Inadvertently, he invited the legislature to control judges, something that any government will be only too happy to do, but which no right-minded person would like. Thus the Supreme Court missed a rare opportunity to establish its moral authority. However, this disclosure is welcome as people will be able to know the financial background of judges now. This is the first step and one hopes more transparency is on the way.

But the question may be asked about why the judiciary alone should be assigned the task of interpreting and enforcing the Constitution and not the executive and the legislature, especially when judges lack popular mandate. The answer to this was provided by Laurence H. Tribe of the Harvard University: “[T]he independent judiciary has a unique capacity and commitment to engage in constitutional discourse — to explain and justify its conclusions about governmental authority in a dialogue with those who read the same Constitution even if they reach a different view. This is a commitment that only a dialogue-engaging institution insulated from day-to-day political accountability but correspondingly burdened with oversight by professional peers and vigilant critics can be expected to maintain…

“The price we pay for allowing judges to discharge his commitments is that, for various periods of time, an enlightened consensus may be blocked by blind judicial adherence to constitutional views we will later come to regret. But the price of the alternative course is that, for other periods, the enlightened consensus that judges might help to catalyse in the name of the Constitution may be blocked by more self-interested or short sighted majorities.”

Insulation from day-to-day political accountability does not mean no accountability. There is corruption in the judiciary. Allegations against judges are not uncommon. But no action has been taken any corrupt judge. Instead, the Supreme Court further fortified the position of judges by ruling that no investigation would be made against any judge without the prior approval of the CJI.

Corruption is a crime under the Indian Penal Code (IPC) as well as the Prevention of Corruption Act. But judges enjoy immunity as even the president cannot give sanction for prosecution in a case of corruption against a judge of the higher judiciary without the recommendation of the CJI. No judge has been subjected to criminal investigation in the last 15 years. If an FIR cannot be registered against a judge how can his crime be investigated or proved?

Judges are public servants under Section 21 of the IPC. Further, Section 166 of the IPC provides for the punishment of public servants guilty of misconduct. The Judicial Officers’ Protection Act, 1850 and the Judges Protection Act, 1985, read with Section 166 of the IPC, do not give any immunity. Aren’t judges, like the rest of us, bound by the law?

Sudhanshu Ranjan is a Delhi-based journalist.

The views expressed by the author are personal.