Asking for a Clean Judiciary

By ADITYA | Published: SEPTEMBER 29, 2010

On first reading the news of Mr. Shanti Bhushan filing an affidavit about corruption in the judiciary, one would think that he has taken the issue a little too far. Mentioning in open court that corruption is rampant in the judiciary and further submitting a list of names of those judges whom he thought were corrupt was surely to be a case for contempt.

However, one should understand that this action was not a sudden tirade against the judiciary. Few of us who have read Mr. Prashant Bhushan’s book ‘The Day that shook India” on the Indira Gandhi case and the emergency or are aware of Mr. Shanti Bhushan’s fight against the Indira Gandhi administration would know that this incident is a culmination of a series of actions undertaken by Mr. Shanti Bhushan and his son, Prashant Bhushan over the years. I am now given to understand that since 1990 both the lawyers have been actively involved in the Campaign for Judicial Accountability and their recent crusade against judicial accountability and applicability of the RTI Act against the judiciary has been laudatory to say the least.

Upon perusal of the affidavits (now available online) submitted to the Supreme Court by the lawyers, one aspect clearly stood out which ought to be brought to light. The concerned paragraph is reproduced below;

“That corruption by judges is a cognizable offence. The Code of Criminal Procedure requires that whenever an FIR is filed with respect to a cognizable offence, it is the statutory duty of the police to investigate the offence. The police has to collect evidence against the accused and charge-sheet him in a competent court. He would then be tried and punished by being sent to jail. The Supreme Court has however by violating this statutory provision in the CrPC given a direction in its Constitution bench judgement in the Veeraswamy case of 1991 that no FIR would be registered against any judge without the permission of the Chief Justice of India. In not a single case has any such permission ever been granted for the registration of an FIR against any judge after that judgement.”

Section 197 of the Code of Criminal Procedure mandates that when a public servant is to be charged for the commission of any offence, prior sanction of the Central/ State government is necessary. The same is also mandated in the Prevention of Corruption Act, 1988. The law as laid down in K Veeraswami v. Union of India [(1991) 3 SCC 655] states that the judges of the High Court and the Supreme Court are outside the purview of the Prevention of Corruption Act, 1988. Further that any sanction for prosecution of a Judge under S. 197 must be taken from the Chief Justice of India and not the concerned Government as mentioned in the Statute. This, under the all surmounting garb of ‘independence of the judiciary’.

In the Judges’ cases, the Court justified that framing of its own procedure to appoint judges because it stated that independence of the judiciary was paramount and part of the basic structure of the Constitution. In these cases, the Court was dealing with the absence of a ‘clear’ law on the issue and then proceeded to frame it. In the Veeraswami case, despite there being clear statutory provisions on the issue, there has been a successful attempt by the Court to subvert the statutory process. If one is to challenge the newly discovered supremacy of the Court, a critique of this ‘protectionist’ attitude should form the core of the argument.

I would also state that the above situation is perhaps one of the central reasons for an abysmal rate in the prosecutions of judges for corruption even though we all seem to be talking about it. Case in point being the public statement made by the Chief Justice of the Gujarat High Court stating “In our judiciary, anybody can be bought”. Should the fact that our judges have not been prosecuted imply that we have a clean judiciary?

This situation must be looked in the light of the doctrine of ‘Checks and Balances’. Every organ of Government, the executive, legislature and the judiciary functions and is regulated by a system of checks and balances. James Madison in the Federalist Papers wrote that “the three branches should not be so far separated as to have no constitutional control over each other.” The system of checks and balances is designed to allow each branch to restrain abuse by another branch. The judiciary in our case seems to be playing a very commendable role in checking the actions of the executive and the legislature. However, diminishing the ability and authority of the legislature and the executive to check the actions of the judiciary under the garb of independence and basic structure is purely autocratic in nature. In this case, democracy would do a lot better with the executive and the legislature playing a role in giving sanction to prosecute the judges.

On a side note it must be mentioned that while the judiciary declared in the Veeraswami Case that the Prevention of Corruption Act is not applicable to judges, in Vineet Narrain v. Union of India, it stepped in to direct the CBI to prosecute certain Government officials even though sanction for prosecution was not given, under the long arm of judicial law- making and ‘checks and balances’.

Perhaps then we need to re-evaluate this autocratic nature of the judiciary. By re-evaluation, I don’t mean that the judiciary itself reviews its role in the democracy through a judgment or something. But that all the organs of Government collectively decide on the checks and balances of each organ and the manner in which they ought to be implemented.