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Judiciary: Independence vs stemming corruption

Never before in the history of Independent India there have been allegations of corruption against so many judges in such a short span of time. Undoubtedly, these questions need to be answered. But are the answers to these questions so simple? Nilesh Mathur examines.

india Updated: Sep 27, 2008 21:01 IST
Nilesh Mathur

Are judges above the law? Who will judge the judges? How do you make judges more accountable? These are some of the important questions which are raising their heads these days. Never before in the history of Independent India there have been allegations of corruption against so many judges in such a short span of time. Undoubtedly, these questions need to be answered. But are the answers to these questions so simple?

The difficulty arises from the fact that the Independence of Judiciary is one of the most important pillar on which democracy lies. Rightly, the framers of our Constitution had this principle uppermost in their mind while they were creating the structures of the three most important organs of the state – the legislature, the executive and the Judiciary. The fear is that any move to create a mechanism to make the judges more accountable has the risk of interfering with the judicial independence.

However, the Indian Constitution is also guided by the principle of check and balance. What it means is that power and responsibility is distributed between the three organs of the state in such a manner that each organ of the state keeps a check on the other and stops the other from transgressing its authority or working in a fashion which is opposed to or divergent from the purpose for which it has been created. Most of us know about the role played by judiciary when Indira Gandhi had imposed the Emergency in the country. In same manner the legislature and the executive have played important role on a number of occasions to persuade the other organ to do its duty in the rightful manner or prevent it from going the wrong way. It is here that we have a hope of finding some answer if the judiciary on its own does not to find a remedy to the malady of corruption. However, it is not a very healthy method to root out the problem which the judiciary is facing today as it may lead to host of other problems.

Three cases of corruption charges against judges in the recent past have increased the urgency of finding a solution to the crisis of credibility that the judiciary is facing today. The Ghaziabad judiciary scam came out in the open in the month of February this year. Judges from all the three tiers of judiciary were charged with involvement in the illegal withdrawal of Rs 23 crore from the provident fund accounts belonging to Class III and Class IV employees of Ghaziabad courts. In the investigation that followed, UP police identified 34 sitting judges among those allegedly involved in the embezzlement of money. One Supreme Court judge, 10 High Court judges and 23 lower court judges constitute the 34 judges who are under the scanner. Recently, the UP Govt has recommended a CBI probe into the PF scam.

Another case of corruption in judiciary came into the light in the month of August this year. Bribe money amounting to Rs 15 lakh was mistakenly delivered at Justice Nirmaljit Kaur’s residence in Chandigarh by additional Haryana advocate general Sanjeev Bansal’s clerk. Realising that something was fishy, Kaur immediately called the cops. Further investigations revealed that the money was sent by a Delhi-based hotelier Ravinder Singh through his friend Sanjeev Bansal and was meant for another judge Nirmal Yadav. Further probe by the police in the case has put the spotlight on a well-entrenched bribe-for-judicial-favours scandal, which has hurt the image of the judiciary. Chief Justice of India KG Balakrishnan has granted permission to the CBI to question the two judges of Punjab and Haryana High Court, who have been linked to what has now come to be known as cash-in-bag scam.

Last but not the least, the recent revelation about Chief Justice of India KG Balakrishnan’s recommendation to the Govt for the impeachment of Calcutta High Court Judge Soumitra Sen for corrupt practices clearly shows that rot has set in the judiciary. The Centre plans to move an impeachment motion against Judge Sen when the Parliament meets on October 17. Justice Sen has been charged with misappropriation of about Rs 24 lakh in a case where he had been appointed receiver in the 1990s. The judge, who was a practicing lawyer at that time, had deposited the money in his own account. Judge Sen will become the first judge to be impeached in India if the parliament passes the impeachment motion. It is important to note at this point that impeachment of a judge in India is a very cumbersome process. An attempt to impeach Justice V Ramaswamy of the Supreme Court back in 1993 failed because voting was done entirely on political lines.

Thus, we find that stemming the rot of corruption from judiciary does not have a very simple answer. On the one hand, we want to protect the independence of judiciary and on the other we want to keep it free from corruption. We should also realise that corruption will also take away the independence of judiciary.

Undoubtedly, the best solution to the problem would be if judiciary itself enforces accountability from within. A major step in this direction was taken recently when the Supreme Court handed over the investigation of the UP provident fund scam to the CBI. And now, Chief Justice of India KG Balakrishnan's announcement of new steps for better scrutiny of credentials of lawyers aspiring to be judges, could prove to be another milestone in way of restoring the credibility of the judiciary.