PUCL Bulletin,
July 2003
Combating
corruption in the judiciary
- By P.P. Rao
The Indian judiciary has an impressive record and its credibility used
to be very high till recently. The Executive and the Legislature are way
behind even today. Speeches heard recently in Parliament indicate the
concern of the people at large that all is not well with the judiciary.
A few corrective measures are absolutely necessary to restore its health
and make the institution more effective and accountable.
Without the Judiciary, there can be no rule of law. Unless its house
is in order, it cannot exercise effective control over the Executive and
the Legislature. The people of India have a tremendous stake in the judiciary
which is the only hope and last resort for all oppressed citizens. More
than power, it is the moral authority that sustains the judiciary.
The few instances of doubtful integrity of judges of High Courts in the
North, the West and the South, widely reported and commented upon in the
media last year and the ongoing prosecution of a former Judge of the Delhi
High Court underline the need for a constitutional mechanism to weed out
from the Judiciary members suspected of moral turpitude. The Prevention
of Corruption Acts, 1947 and 1988, have not succeeded in checking corruption.
A.P. Bharucha as Chief Justice of India frankly admitted that there was
corruption in the ranks of the judiciary to some extent, mostly at the
lower levels. The constitutional provision for impeachment of judges of
High courts and of the Supreme Court is impracticable. The disease of
judicial corruption has, therefore to be tackled by other methods before
it assumes the proportions of an epidemic.
In C. Ravichandran vs. Justice A.M. Bhattacharjee (1995), the Supreme
Court suggested an in house method which is non-transparent, time consuming
and uncertain. The need for an alternative method of getting rid of judges
of doubtful integrity is being felt acutely, it is possible to root out
corruption in the Judiciary if a provision is made in the Constitution
for premature retirement of public servants in public interest on the
ground of doubtful integrity regardless of the length of service put in.
The power to retire will have to be in the hands of the Judiciary itself
to maintain its independence. In the case of the subordinate judiciary,
this can be done by amending the service rules.
The view expressed by the Supreme Court in O.P. Bhandari vs ITDC Ltd.
(1986) suggest that such a provision will be valid. Getting rid of a black
sheep alone is not enough. The resultant vacancies must be filled up by
the most deserving young men and women by amending the rules of recruitment
at the entry point. Five national Universities are functioning in Bangalore,
Hyderabad, Bhopal, Kolkata and Jodhpur. In addition, there are a number
of law schools with five-year degree courses attracting equally bright
students. They are all imparting legal education of a high quality and
their products are a class apart. To tone up the quality of justice at
the level of subordinate judiciary, it is necessary to induct fresh law
graduates who have done well in the five-year degree course as Civil Judges/Magistrates
straightaway after giving intensive training for at least one or two years
at the National judicial Academy, Bhopal. In addition, if a provision
is made for fast track promotions at reasonable intervals, depending upon
their overall performance, merit and integrity as in the case of All India
Services, it would encourage the toppers to opt for a judicial career.
Before Independence and for some years thereafter, it was the practice
to appoint the most competent lawyers as law officers, public prosecutors
and Government pleaders in consultation with the Chief Justices of the
High Courts and in due course, consider them for elevation to the Bench.
Later on, political connections and extraneous factors such as caste came
to prevail over consideration of integrity and ability in the matter of
appointment of Government counsel and judges. Consequently, the quality
of justice began to deteriorate. It is by chance that we find some bright
and exceptionally good judges on the Bench.
The assumption of exclusive power of selection of judges by the judiciary
by a laboured interpretation of the Constitution in 1993 has not yielded
the expected results, although some improvement in quality is noticeable.
There have been several instances where more deserving judges were either
not selected or were made to wait for long. Vacancies remain unfilled
for long spells. It is, therefore, necessary to improve the standard of
selection and make it transparent. In the matter of appointment of law
officers and judges of High Courts and the Supreme Court, ability and
integrity should be the primary considerations. A minimum tenure of not
less than five years on Bench is necessary for a judge to settle down
and make his contribution. Seniority should have a play only when all
other factors are approximately equal.
The idea of a judicial collegium to recommend candidates for appointment
as judges first mooted by P.N. Bhagwati, J., in 1982 has received wide
support; the latest supporter being the National Commission to Review
the working of the Constitution which recommended that for appointment
of judges of the Supreme Court the composition of the National Judicial
Commission (NJC) should be: the Chief Justice of India (CJI) as Chairman,
with two senior-most judges of the Supreme Court; the Union Minister for
Law and Justice and one eminent person nominated by the President after
consulting the CJI as Members.
The Government desires the nomination to be made by the Prime Minister,
instead of the President. They would also like to invest the NJC with
disciplinary jurisdiction, which is debatable. Instead of substituting
the Prime Minister for the President, a better course would be to allow
the President to nominate after consulting the Prime Minister, the Leader
of the Opposition and the CJI the nominee should be a distinguished retired
judge, an eminent senior advocate or a jurist.
The most pressing problem facing the judiciary is its inability to deliver
speedy justice. It is possible to ease the congestion by introducing shift
system in all courts deploying retired judges and administrative staff
who enjoy high reputation for integrity and efficiency. The Law Commission
in its 125th Report (1988) recommended introducing shift system in the
Supreme Court. In 1999, the then Law Minister, thought of shift system
in all courts, but could not implement it. Shift system is in vogue in
industrial establishment and some educational institutions because of
necessity. With minimum cost, the shift system can yield maximum output,
providing immense relief to lakhs of helpless litigants, endlessly waiting
for justice.
The prospect of re-employment after retirement will also act as incentive
to serving judges and judicial officers to remain honest and discharge
their duties efficiently. Retired judges need not then look forward to
the Executive for discretionary assignments. This would reinforce the
independence of the judiciary. No reform can be a success without the
cooperation of the Bar. Shift system, helps distribution of work among
more lawyers and to some extent break, the monopoly of a few practitioners
in every court. It will give more satisfaction to the litigants as compared
to any other alternative method of dispute resolution such as arbitration
or Lok Adalat. There is no point in wasting the precious human resources
in the shape of retired judges when the institution is about to collapse
under the weight of pending cases