– THE DOWNFALL OF DEMOCRATIC INDIA.

CORRUPTION AND POWER GAMES IN THE JUDICIARY – THE DOWNFALL OF DEMOCRATIC INDIA.

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CHAPTER 1

INTRODUCTION

Judiciary is one of the strongest wings of governance in the legal mechanism of India. Being a body of great authority, it had been endowed with several powers of an independent character. Naturally, justice cannot be delivered without endowing such powers. Thus, the Judiciary has been granted an independent character to steer away from the influence of other wings in its domain. Independence of the Judiciary is one of the founding pillars of the Constitution of India. To ensure fair and impartial justice, such independence holds a strong significance in today’s world. However, the question that now arises is whether this independence still remains as a tool to practice fair justice or has become an unaccountable exercise of its whims and fancies. It is not an unknown fact that corruption has leapt into the mechanism of the judiciary. Although, facts that are known to the public represent only a meagre part of the rising concerns. The overlap of Judiciary and corruption that exists is much more deep-rooted and complex to even begin to comprehend. What on the surface looks like a dysfunctional or broken system operates smoothly and beneficially for the politicians, businesses, and connected individuals who use it with ease. For the average Indian citizen, however, access is challenging, and corruption is a visible reminder of the failed promise of democracy. The privileges given to the Judiciary, however important, must be screened through some tool of accountability. The situation that has arisen in front of the citizens of India today is not a result of one particular event or cause. It is a result of a series of actions including different facets over the years. The Judiciary which once was an institution of fairness and justice is now home to rampant corruption. The author, by the way of this research paper, seeks to understand the causes of such corruption, study its consequences and suggest remedial measures towards betterment. 

BACKGROUND TO THE STUDY

The legislative and executive bodies of the Government are strictly constricted to making and implementing laws, leaving judiciary with the most important task of all- interpretation and application of these laws. That is why the Indian Judiciary is often perceived as the guardian of the rights of the citizens. Our judiciary is considered to be an institution of high regard. Clearly, there is a deviation. Indian Judiciary has been constituted in a very systematic and precise manner. Along with the hierarchy of courts, there also exist special courts for special causes. The powers granted and the functions delegated to, are carefully crafted to ensure fair and speedy justice. In order to uphold the principles of the nation and ensure fearless deliverance of justice, the judiciary also possesses a degree of independence. However, reality depicts an entirely different picture. With the number of judicial scandals witnessed, it is high time to draw sufficient attention towards the incapabilities of the judiciary and the corruption it carries with it. 

SIGNIFICANCE

Indian Judiciary is the sole institution governing and protecting the rights of the citizens of India. Existence of corrupt practices within this institution should not be tolerated at any cost. Corruption in the judiciary is similar to a pest infestation. However, in this case, there is no direct remedy. One can begin with understanding the root of this issue and creating significant awareness. This study is an attempt at the same. 

RESEARCH PROBLEM 

The problem of corruption and power games in the Indian Judiciary is not merely about the judicial officers misusing their powers for personal gain, it is also about the modern tendency of blaming the “system” without being aware of the actual happenings and the blatant ignorance of rights of the citizens. 

OBJECTIVE OF THE STUDY

The primary objectives of this study are-

1.      To understand the nature and extent of the corruption that has leapt into the judicial mechanism.

2.      To study in detail, cases and scandals of the Supreme Court and various High Courts. 

3.      To analyse the causes of such corruption and power games.

4.      To compare the gravity of the situation with other nations. 

5.      To arrive at a logical conclusion and suggest appropriate corrective measures.

CHAPTER 2

METHODOLOGY EMPLOYED

i.       Scope of the study

The scope of the study is very specific. It is mainly restricted to India since the root of the problem is based in India. Although, the study has been extended to the ideological legal systems of other countries to arrive at a logical conclusion. 

ii.     Sources of data collection

Viewing from the data collection purview, this study is based on a secondary method of data collection. Secondary method refers to using data that already exists. The secondary method involves various articles, sections, periodicals, governmental and non-governmental reports, databases and online sources. These provide valuable and reliable information. Since for this study, a secondary method was acquired, there is no fresh collection of data. The information collected is not first-hand information, rather it is based on case studies, political interviews, journals and online articles.

iii.    Sample Size

The primary theme of the study being the Indian judiciary, the study is restricted to India. The sample size is restricted to the Supreme Court and the High Courts of Allahabad, Bombay, Punjab, Delhi, and Madras. Other lower courts are excluded to make this study more systematic and consistent. 

iv.    Data analysis

Since the author is mainly dealing with qualitative research, a deductive approach is adopted. After a detailed analysis of the collected data, the author has attempted to infer a logically deduced conclusion. The tool of data analysis used for the purpose of this paper is content analysis. 

CHAPTER 3

LITERATURE REVIEW

The topic of the study is an analytical one, thus it requires attention to analyse an extensive act like this one. The research is carried out through various articles, research papers and judgements in order to understand the various provisions and gain a better insight into the underlying concept.

Hari Ram Anthala, in his paper “Corruption in the Indian Judiciary- National and International perspective”, presented 22 corruption cases along with a timeline of its occurrence along with the corruption instances of Indian Judiciary with an International perspective. In his study, he also referred to a report from Washington DC which helped the author in assessing the pervasiveness of Corruption in Indian Judiciary. 

In Becker-Stigler (1974), and Klitgaard (1991), it was devised that corruption through bribery of public officials reduces the expected punishment faced by potential criminals and therefore hampers deterrence. In this context, increasing the salaries of public enforcers and/or paying private enforcement agencies for performance would tend to improve the quality of enforcement. 

Buscaglia, Edgardo. (1999), in the paper “ Judicial Corruption in Developing Countries: Its Causes and Economic Consequences”, sequenced the design of Anti Corruption Policies and laid down the relationship between corruption and economic downfall.

Divyanshi Chugh (2012), in her paper Psychology of Corruption, made a related system between corruption and theories of psychology in order to explain the behavioural aspect and the stimulants involved in the act of corruption. 

Neeraj Tiwari, (2009) in “Legal Regime on Prevention of Corruption in Judiciary”, carried out a detailed case study on different judicial corruption scams namely, The Veeraswami case, the case for judge scam, Ghaziabad provident fund scam, and prosecution of judges. 

Namita Jain (2017), in “CORRUPTION IN INDIAN JUDICIARY: TIME FOR ACTION”, presented an analysis of the S.P Gupta case, Second Judges’ case, along with the boundaries of the Contempt of Court Act. It helped the author comprehend the causes and effects of judicial corruption in light of legal provisions. 

Yashveer Singh (2017), elaborated on the causes, effects, remedial measures and areas of judicial corruption in India and presented 23 cases of corruption within the Indian Judiciary. The division of the content inspired the author to devise a similar framework.

David W Rivkin, (2015), the President of the International Bar Association (IBA), launched the IBA Judicial Integrity Initiative. It released a report on how to combat judicial corruption, where it exists by attempting to understand the types of corruption that affect the judicial system and focusing on the role of the various professionals who operate within judicial systems. Under the initiative, a survey was conducted, and it received a total of 1,577 responses from 120 countries. The observations of the report aided the author in understanding the causes and typed of judicial corruption.

Lastly, the two indices- Corruption Perception Index 2019, by transparency International and Rule of law Index 2020, by the World Justice Project structured the pervasiveness of corruption in 180 and 128 countries respectively. These indices helped the author in understanding the position of India amongst other nations with reference to its corruption practices. Moreover, the reports of these indices were elaborate, and based on extensive research tools which served as a reliable source of data. It goes without saying that Landmark judgements and statutes relating to the judiciary helped in understanding the Indian perspective of corruption and accountability.

These sources helped in giving a systematised structure to this paper. 

CHAPTER 4

 FINDINGS AND CONCLUSION

For the purpose of this study and to simplify the content, this chapter has been further divided into the following sections-

1- Causes of Corruption and power games within the judiciary 

2- Role of organisational behaviour in the judiciary

3-  Consequences of such corruption 

4- Current Scenario with reference to other legal systems

5- Conclusion and Suggestions

Causes of Corruption and power games within the judiciary 

In order to understand the source and genesis of the corruption that has seeped into the pores of the Indian Judiciary, it is as plain as a pikestaff that the same cannot be achieved without indulging in the causes and factors that encourage such an act. For a clear understanding and to be able to assess, analyse and suggest measures to curb judicial corruption, the author would first and foremost like to lay down the root of the problem, giving rise to the growing corruption. Corruption alone is a term associated with words like dishonesty, malice, greed, power, and fraud. It is human nature to give preference to power and wealth. But, when a person values this power and greed above his cognitive morals and ethics, that is when he gets susceptible to bribery and Corruption. Although one might come at crossroads while associating corruption with the sanctity of the Judiciary. As, in terms of the Indian Legal system, the Judiciary can be perceived as a neutral guardian. Ideally, the Indian Judiciary has the primacy over all branches of Governance and the same is being exercised by the impartial and legally sound Judges and officials of the Court. It is true that there is no place for emotions in law. The law gives preference to what is legally correct and rational over emotions and human wants. To ensure the deliverance of justice and furtherance this principle, the judges are endowed with great benefits and independence. Yet, somehow power and greed has made its way to the judiciary. This section mainly deals with the defects in the structure and framework of the Judiciary. Thus, it mainly revolves around corruption amongst judges. The other aspect causing corruption to leap into the realms of judiciary will be dealt with in the next section. The technical causes leading to the growth and emergence of Judicial Corruption in India can be weighed as follows-

1.      Process of Appointment

This is one of the main causes of judicial corruption. The Constitution of India has moulded the provisions of Independence of Judiciary so as to make it a part of the basic structure of the Constitution. Although it seems as though this independence has paved the way for numerous discrepancies within the Judicial System. Naturally, the corrupt practices acquainted with the appointment of Judges will spread to the other wings and functions of the Judiciary. The Constitution, though standing by the principles of the doctrine of separation, did not succeed in drawing a clear line of distinction between the powers of Judiciary and Executive while dealing with the realms of Appointment of Judges. The first aspect that is important to consider is the scenario prior to the Second Judges’ Case. Article 124 and 217 of the Indian Constitution lays down provisions regarding appointment of the Chief Justice of India and Other Judges of the High Courts and the Supreme Court. The Appointments of the Chief Justice of India has witnessed its fair share of controversies. Soon after the landmark case of Kesavananda Bharati case [(1973) 4 SCC 225], the only prominent judge who expressed a dissenting opinion while the basic structure of our Constitution was being outlined, assumed the position of the Chief Justice of India. The landmark case which gave primacy to the Constitution and not the Legislature surely caused some dissatisfaction within the Indira Gandhi Government. Soon after the judgement, in 1973, Justice A. N. Ray became the Chief Justice of India, whereas he was appointed as a judge of the Supreme Court in the year 1969. The appointment of Justice A. N. Ray was made after superseding three other senior judges of the Supreme Court- Justice Shelar, Justice Hegde and Justice Grover. This was considered as the blackest day in the Indian Democracy (Vicky, 2018). Democracy took another hit when Justice Beg superseded Justice H.R Khanna in 1975. The Supreme Court, in the year 1993, made it a mandate to appoint the senior-most judge as to the Chief Justice of India. Further, the second aspect of raising red flags is the appointment of Supreme Court judges. The President appoints the judges of the Supreme Court after consultation with other judges of the Supreme Court and, judges of the High Courts, if necessary. The same applies to the judges of the High Court. An appointment is made by the President after consulting the Chief Justice of India. The word “consultation” was added in the provisions so as to keep the executive in check. Although, the word consultation implies that it is not binding in nature. This gave rise to the increasing influence of the executive in the judicial domain. The same has been contested in several cases. In the landmark cases of Subhash Sharma and Ors. and Anr. v. Union of India [(1990) 2 S.C.R. 433] and S.P. Gupta and Ors. v. Union of India and Ors. ([1982] 2 SCR 365), the Court upheld the primacy of the Executive wing. This only highlights the grave miscarriage of justice and the norms of the Indian Constitution. Heavy influence and control in the hands of the Executive encourage power games and political imprint on the judiciary. Since the control of the appointment of judges was solely in the hands of the Executive, the judges would naturally not express their decisions, criticisms and judgements fearlessly. This is the root of corruption in the realm of appointment of judges- Executive Influence. The position of a judge in the higher hierarchy of Courts is a privilege accompanied by several political, monetary and other benefits. Needless to say, in order to get this position, judges of the lower courts would favour the executive and act according to their whims and fancies. To counter this dreadful practice, the court in Supreme Court Advocates-on-Record Association and Ors. vs. Union of India [(1993) 4 SCC 441], decided in favour of primacy to the judiciary. The ratio decidendi set in this case was that the word “consultation” must be construed as concurrence with the Chief Justice. In this way, the authoritarian practice of giving supremacy to the executive in terms of appointment of judges was attempted to be countered. Although, what was blatantly ignored while delegating this power to the judiciary is that the object of the Constitution while adding the term “in consultation with” in the Article was to ensure that none of the wings of the Government- the Executive or the Judiciary, is endowed with more powers than required. It intended to create a system of checks and balances. The decision laid down in the aforementioned case, marked the advent of a collegium system to look after the appointment of judges. It consisted of the Chief Justice along with three senior-most judges. This affected adversely and left the judiciary laden with the arbitrary power of appointment of judges. Not so long ago, in January 2019, the collegium went against its own decision and appointed Justice Khanna and Justice Maheshwari as judges of the Supreme Court. Justice Sanjeev Khanna was 33 in rank on the list, meaning he superseded 32 judges within a span of merely 20 days. This led to a great controversy as the numbers did not add up and after appointment, owing to his age, Justice Khanna is next in line to become Chief Justice of India (Soibam Rocky Singh, 2019). This is a heavy blow on the very bedrock of Indian democracy. Thus, such irregularities encourage and permit corruption to prevail in the Judiciary. 

2. Process of Removal

Another defect in the framework of the judiciary itself is the process of removal of judges from their positions. The process is known as impeachment. As discussed earlier, independence of Judiciary is an essential element of the Basic Structure of the Constitution, meaning, it cannot be altered or interfered with easily. To ensure the same, the process of removal of Judges has been laid down in a way that it is long, difficult and complex. The object of the framers of the Constitution was that if judges could be removed easily, then they would refrain from delving into lawful and resourceful pronouncements and thus deliverance of justice would be hindered. Although this structural complexity has led to the emergence of corruption into the folds of the judiciary. Sub-Section 4 of Article 124 of the Indian Constitution and Section 6 of Judges (Inquiry) Act, 1968 deal with the procedure for impeachment of judges. The only grounds available to initiate such proceedings is “proved misbehaviour or incapacity”. Here, what is alarming is that grounds that are so narrow have not been defined anywhere, leaving a vague scope of interpretation. Once such a ground for impeachment can be made certain, a motion of impeachment is passed in either Houses of the Parliament. This motion must be introduced by the Speaker, as in the case of Lok Sabha, and the Vice President, as in the case of Rajya Sabha, and passed by a simple majority. Once passed, an investigation committee is set up to look into the matter and confirm the allegations in the motion. Based on the report of investigation, the motion awaits the majority of the other House of the Parliament. Finally, the report to the President is passed by both the Houses and only then can a judge be removed. Clearly this process is very detailed and tedious and often fails to be passed. This becomes even more complicated as the transparency standards as to the Judiciary are too rigid to collect certainty related to the grounds of impeachment. Till date, no judge in India has been impeached. Although, quite a few judges have faced impeachment proceedings. It began in 1993 when Lok Sabha failed to get a 2/3rd majority on the impeachment motion against Justice V. Ramaswami. Justice P. D. Dinakaran, J. B. Pardiwala, Soumitra Sen, and Nagarjuna Reddy, have also faced these proceedings but were not removed from their position. Justice Soumitra Sen would have been the first judge to be impeached in India for misappropriating Rs. 33.32 Lakhs under his custody, although he submitted his resignation before the meeting with such a fate. (The Hindu Net Desk, 2017). Since the process of removal of judges is nearly as complicated as implementing and drafting legislation itself, the judges enjoy a fearless position. Resultantly, it gives rise to a notion of excess control, paving way for an attitude, conducive for the growth of corruption. 

3. Abundance as to Provisions of Contempt

Next comes the provisions relating to Contempt of Court. It goes without saying that strict regulations are a prerequisite for any judicial system. As discussed above, the Judiciary possesses a sacred character in the Governance system. No person, citizen or not, must think that it is fit to fiddle with this sacred institution. The Contempt of Courts Act, 1861, bars any act which hinders the proceedings of a Court. In simple words, any disobedience or obstruction caused to the course of a court proceeding is punishable under this act. This is one of the biggest roadblocks to judicial accountability. The definition of Civil or Criminal Contempt is so wide and vague that it leaves scope for any act of criticism to be brought within the meaning of Contempt. Judges often compromise the areas of Freedom of Press under the shield of Contempt of Court. It is equivalent to unlimited unrestricted power and does not, in any sense, further judicial accountability. Media is used as a tool of accountability and awareness to keep an eye over the legitimate functioning of the Court. If this tool is curbed, the people would not be aware of the practices and settlements taking place “under the table” of the Courts. The judgements and observations of the Court have to be criticised in times of need in order to highlight the discrepancy and draw attention towards corrupt practices. If the mouths of people furthering such criticism and awareness are shut, then the boundaries of Judicial accountability are compromised, leaving the Judges and Court officials with unlimited power. This again would amount to a grave miscarriage of Justice. Criticisms and Cover Operations facilitated by mass communication sources are essential for the growth of accountability, and thus regaining people’s faith and confidence in the Judiciary. To explain the importance of the same, the author has relied on two judgements; one foreign and one Indian. 

Judge Frankfurter, in the case of  Pennekamp v. Florida [(1946) 90 Led 1295 at p. 1313] observed: “If men, including Judges and journalists, were angels, there would be no problems of contempt of Court. Angelic Judges would be undisturbed by extraneous influences and angelic journalists would not seek to influence them. The power to punish for contempt, as a means of safeguarding Judges in deciding on behalf of the community as impartially as is given to a lot of men to decide, is not a privilege accorded to Judges. The power to punish for contempt of court is a safeguard not for Judges as persons but for the function which they exercise.” Further, In Re: Arundhati Roy, (AIR 2002 SC 1375), The Court observed “The law of contempt has been enacted to secure public respect and confidence in the judicial process. If such confidence is shaken or broken, the confidence of the common man in the institution of judiciary and democratic set up is likely to be eroded which, if not checked, is sure to be disastrous for the society itself.” Thus, it is evident that wide powers granted by the Contempt of Court Act facilitate the escalation of corruption in the Indian Judiciary. 

4. Slow, Long and Expensive process

It is no new finding that any procedure related to the Judiciary is tedious, expensive and endless. The Statues followed by our country are indeed exhaustive and detailed. They have been framed in order to efficiently govern all aspects arising out of any disputes at any point in time. Although, in the due course, this elaborate and strict observance of legal procedures have resulted in pendency of almost 3.5 Crore cases (Sandeep Dangi, 2019). Speedy justice is considered to be one of the fundamental rights within the meaning of Right to life and personal liberty. Yet, there is a prominent delay in court proceedings. Moreover, the monetary resources required to facilitate a judicial dispute are vast. Thus, at times, in order to escape the grasp of extensive and expensive court procedures, people are encouraged to offer bribes, to Judges, Lawyers and Court officials. Bribes are given to change the direction of the judgement delivered, expedite the process, expedite the paperwork not related to the case, and even tampering the evidence or influencing the witnesses. At the receiving end, judges, lawyers, witnesses and court officials accept such bribes to serve as a mode of settlement as well as a potential monetary benefit. The pendency of the cases is increasing day by day. It is one of the most influential external factors contributing to increasing corruption in the Judiciary. Provisions of increasing the number of judges in Higher Courts and establishing more number of specific courts must be implemented quickly and strictly so that the causative factors of Bribes is eradicated from its roots. 

5. Preference to Independence over Judicial Accountability

The Judiciary surely enjoys a large number of discretionary powers under the shield of Judicial Independence. The stance of Judicial Independence was included in the Constitution under the assumption that Judiciary is a separate and important wing and it cannot implement laws and differ what is legally correct from what is legally wrong if it is following commands of the Legislature and Executive or is bound by these wings. Although in the process of setting up opaque walls of independence, it buried the ambit of Judicial Accountability. The Government is “by the people, of the people and for the people.” The Judiciary cannot assume such a position where it is practically impossible to reach by the people. At this point where our country has become majorly citizen-centric, where the locus of control lies with the people, due to the advancement of societal practices and technology, the judiciary is still out of the reach of the common crowd. What is more alarming is that the Judiciary is not even subject to the Right to Information Act, 2005. Recently in 2019, the office of Chief Justice of India was brought under the purview of the RTI Act (Samanwaya Rautray, 2019). Yet, the rest of the judiciary has not been brought under the purview of this Act. A strong step towards ensuring Judicial Accountability when the Parliament introduced the Judicial Accountability and Standards Bill in the year 2010. It laid down specific standards to be followed by the Judiciary and measures to practice to Judicial Accountability. Enforcement of this bill is the need of the hour. It will not only restrict the abundant power of the Judiciary but also counter corruption in the Indian Judiciary. 

Role of organisational behaviour in the judiciary

As individuals and as an organisation, we are expected to adhere to a set of norms and values in order to be a part of any social institution or a community. These values and morals are insulated in us by way of socialising. First, we get it from our family and friends, then our peers and then our professional setting. Often individuals tend to mould themselves as per the values and morals of the ones around them, in order to “fit in”. Naturally, all these factors are imperative to determine the course of actions of an individual or an organisation. Thus, the study of the psychological aspect as to what drives an individual to adopt corrupt practices and thus, setting the same trend in the organisation of the judicial wing. To understand and analyse this aspect, the author has referred to the role of organisational behaviour and the internal factors responsible for the demise of honesty and integrity in the judiciary. 

Firstly, it is essential to understand the internal factors that drive and motivate an individual and later the entire organisation to indulge in deceitful practices. The most obvious explanation for this is the hunger for power and greed. The feeling of being powerful and in control has no limits to it. There is no scope of satiety when it comes to power and control. Thus, irrespective of the generous salaries and perks, judicial officials tend to incline towards corruption. Further, the inner drive can be synonymous with motivation. This is why no amount of money and power is enough once an individual is stuck in the loop of corruption. William McDougall devised briefly upon the instinct theory of motivation and stated that it was composed of Perception, Behaviour and Emotion. He outlined 18 different instincts out of which Acquisitions or gathering possessions is one of the instincts linked to greed and wealth (Praveen Shrestha, 2017). Further, this drive can also be explained using McClelland’s learned needs theory which consisted of three needs- Need for Affiliation, Achievement and Power. Under need for power, one usually wishes to control and influence others and also enjoy status and recognition. Thus, the want for money and control drives an individual to deviate from his or her path of righteousness, ethics and morals. Moreover, as an organisation, if more and more officials observe such a behaviour, one might incline towards corrupt practices for a sense of belongingness or under the influence of others. Additionally, it is a human tendency to want an easy way out or get more without giving that much in return. Instead of waiting years for a promotion, or for a “big break”, or even for the finality of a case, judges, lawyers and court staff prefer taking the easier and quicker way out where they are also getting something in return. Moreover, the instance of the unfettered exercise of powers and functions creates an environment where these officials are not answerable to a superior authority and often become fearless in carrying out corrupt and illegal practices. This is why individuals give preference to corrupt practices over professional ethics.

Next comes the external factors that act as stimulants for using public offices to meet private benefits. In an era where corruption has been deeply imbibed in the working culture of the Judiciary, it is rarely the case that one would not be influenced by such practices. Humans have a tendency towards self-serving biases, leading to unethical behaviour. (Johns, 1999; Moore and Loewernstein, 2004). Further, even an official with a strong moral character would succumb to coercive efforts taken about legislative and executive authority and his peers. This practice is more common and often originates in the lower courts where neither the salaries are high nor the perks and hassle required is more. Officials prefer a corrupt out than the ethically moral one. More importantly, these external factors influence the people who give bribes more than the ones taking. The sense of knowing your work could get done by paying an excess amount is often perceived as a more viable option than patiently waiting for the same work to get done through normal judicial procedures and contributing continuous monetary resources to it. Thus both of these factors, external and internal, can be blamed as the causes of corruption in the Indian Judiciary. Had the working environment been inspired by professional ethics and morals, the organisation of the Judicial Functions would be on a constant ladder of progress. 

Consequences of such corruption 

The third postulate of Newton’s laws of motion is that every action has an equal and opposite reaction. Life around us unfolds in the same way. This postulate does not just apply to the boundaries of physics. Our actions, Our decisions, Our thought process work on the same cause-effect mechanism. However, in the case of the Indian Judiciary, the repercussions of the prevalent corrupt practices are reflected upon the nation and not the ones who commit such an act.  As discussed above, for a clear understanding, it is imperative that one learns about the root cause of that problem and then observe what are its effects, and only then devise an opinion and give relevant suggestions. Judicial Corruption in itself is a matter of great shame and disgrace. The purpose of justice and equality, which is strongly embedded in the founding pillars of our nation, stands entirely defeated when the same platform, where people seek justice for corrupt practices in other fields, is corrupt in its actions too. T. Hammarberg, in one his speeches, addressing human rights concerns, said- “The poor need legal aid, not pressure to pay bribes. They need proof that everyone is equal before the law. They need a system of justice that is fair and unbiased. This is their right” (T. Hammarberg, 2009). It is evident that due to corruption in the Judicial system, the rights of the people, who do not associate themselves in such deceitful practices, have been compromised. Following are the different consequences of judicial corruption-

 1. Sheer violation of Rule of Law

The principles of Rule of Law have been prevalent since the time of ancient civilisations. Our legal system too has been derived from these principles to a large extent. It mainly lays down three postulates stating that the law of the land is supreme, everyone is equal before the law and establishment of courts is a must for adherence of law. In order to maintain the sanctity of law, it is essential to abide by the postulates of the rule of law. Although, when judges, officers and lawyers indulge in corrupt practices, the supremacy of law is indeed compromised. Furthermore, If bribes are taken to tamper evidence, influence the witness, deliver favourable judgements, and expedite bail matters, then the nuance of equality of before law too, stands destroyed. Clearly, there is a deviation from the actual path of the rule of law. This does not just violate the rule of law and raise human rights concerns but also encourages discrimination. It shifts the character of the nation from democratic to authoritarian. Where the officials who derive power from the Constitution, act against the Core Principles of the Constitution. It weakens the nation altogether and aims to escape its liabilities under the shade of Judicial Independence. 

2. Impartial Forum

Judiciary ideally represents impartiality. The former cannot validly exist without the latter. This has been reaffirmed via written text i.e the Indian Constitution as well as symbolically i.e Lady Justice. The blindfolded lady holding a beam balance instantly makes one connect it to Justice and Judiciary. This ancient concept has also been adopted by the Indian Judiciary. Lady Justice widely symbolises law, justice, equity, and judicial institutions. It traces its origin from Greek and Roman mythology, where Themis is an ancient Greek Titaness. She is perceived as the Lady of divine order, fairness, law, natural law, and custom. The beam balance symbolises the Scales of Justice, that have to be pragmatic. The blindfold symbolises impartial decisions or decisions not influenced by wealth, politics, popularity or infamy etc. It basically lays down that law should observe the determination of innocence or guilt without the influence of any prejudice (Indian Law Watch, 2017). Despite the importance and weightage given to the factor of impartiality in the Judiciary, corruption is prevalent. It violates the rights of the citizens to seek impartial justice. Whenever there is a transgression from the principles of law, people turn towards courts to seek relief. If the Courts fail to act diligently, people lose their confidence in the Judiciary and there is no other institution to restore their rights. In a democracy, Rights and Welfare of the people have to be given the most importance. Instead, in this case, rights are being compromised in the name of Democracy. 

3. Deliverance of Justice

The Judiciary is founded on the concepts of integrity, diligence, prudence, social security, public interest, competency, and honesty. It is imperative for each and everyone- right from the common man to the Chief Justice of India to understand the presence of these qualities and must be able to associate them to the judicial system. Judges, advocates, court officials, criminals, politicians, witnesses etc. must do everything in their control to discourage corrupt practices. The judiciary is perceived to be the watchdog of the Constitution. Yet, people have to bribe officials to get their meagre tasks done? Even the judgement delivered is not based on the facts and circumstances of the case or the application of law but the amount guaranteed by the parties contesting it in court. The judges have become fearless in the exercise of their functions. There is no mechanism of accountability. Further, it seems as if the judiciary and the legislature have merged into the same body. In order to get political gains, the officials in the Judiciary act in favour of the legislature. Which has led to a certain amount of control over the judiciary. Whereas the judiciary has not been made answerable to the people, whom it is serving. The doctrine of separation of powers has been rendered meaningless. The concept of justice has lost its meaning in the dawn of judicial corruption.  The deliverance of justice has assumed a biased character and judgements have become a commodity that can be easily bought and sold. 

4. Economic Injustice

Corruption in the Indian Judiciary, to a great extent, is instigated by monetary resources. It has its repercussions. The judges are paid high salaries so that they do not succumb to corruption. Additionally, they enjoy other perks offered to government officials too. Thus firstly, it is alarming to see an inclination towards bribes despite having generous salaries. Secondly, it is unfair on the part of the parties who might have a strong case but loses it eventually merely because the opposite party has rigged the system. They end up paying the heavy court fees diligently and following all procedures thereof and yet lose the fines and judgements that should have been in their favour irrespective. This affects the people of the lower, and the middle class the most as they are the ones whose rights have been compromised just by the reason that they could not arrange for sufficient monetary resources to bribe the machinery. Clearly there is an imbalance. The same imbalance counters economic development in our country. 

5. Failure of the Constitution

It took two years, eleven months and seventeen days to formulate the Constitution of India. In simple words, it is an elaborate handbook guiding the Government on principles of governance and provides the citizens certain entitlements for their security. Thus, strict adherence to the constitution is in the best interest of the nation. It has conceptualised the ideals and cries of the pioneers of our freedom struggle. The Constitution recognised the need for a strong neutral force to watch over the actions of the People and the Government. It also realised that this force had to be independent and free of external influence. Thus, our constitution makers devised a strong and Independent Judiciary, for the safeguard of our nation. Clearly these powers are being misused. It is a disgrace on our rights, our nation as well as the plight of the ones who sacrificed and devoted their entire lives to give us a democracy to strive and grow in. It defeats the purpose of endowing the people with fundamental rights, granting them with freedom of speech and expression, right to criticise and scrutinise the government, formulating policies with an aim to achieve public welfare and security, when the safeguard of their rights acts in such a deceitful manner and vandalises their rights. Equality, Liberty and Justice are the pillars on which the interest of the people lie. It furthers the development of the nation and the society in a conducive environment. The Judiciary has failed to perform its functions according to the Constitution. The Chairman of the Drafting Committee and one of the biggest contributors to the abundant steps taken towards public welfare; Dr B R Ambedkar, when asked about the most important article in the Constitution, he said that the right to enforce one’s fundamental rights before the Supreme Court i.e Article 32, is the heart and soul of the Constitution, Which comes under the purview of the Judiciary. Yet, judicial corruption is rampant in India. It has resulted in a stagnant judiciary, not having people’s confidence. Naturally, when the most important part of the Constitution will fail to exercise its duties and functions righteously, it will lead to a failure of the Constitution. 

Current Scenario with reference to other legal systems

1.      Supreme Court

Former Chief Justice of India K. G Balakrishnan was alleged to be open for fixing of cases in the Supreme Court. He had to face scrutiny for the wealth amassed by his close relatives, including his daughters and sons-in-law, when he was a judge in the Supreme Court from 2000-10. (Firstpost, 2011).

Former Judge V. Ramaswami, who faced investigation and impeachment proceedings on grounds of administrative and judicial malfeasance and embezzlement of expensive goods. (Sangeeta Barooah Pisharoty, 2018)

A former court staffer of the Apex court alleged former Chief Justice Ranjan Gogoi of sexual harassment and abuse of power. The only step that was taken was formation of an investigation committee, rendering no conclusions. (Rohan Venkataramakrishnan, 2019). 

Former Law Minister Shanti Bhushan publicly alleged 8 former Chief Justices of India of Corruption and produced a letter before the Supreme Court contending the same. The letter comprised of Justices Ranganath Mishra, K N Singh, M H Kania, L M Sharma, M N Venkatachalliah, A M Ahmadi, J S Verma, M M Punchhi, A S Anand, S P Bharucha, B N Kirpal, G B Patnaik, Rajendra Babu, R C Lahoti, V N Khare and Y K Sabharwal. (J. Venkatesan, 2010) 

2.      Bombay High Court

Chief Justice of Bombay High Court, A. M Bhattacharjee resigned from his post whilst there was an active allegation of a questionable book deal worth Rs. 26 lakhs, which was reportedly an excess sum for Muslim Law lectures. (Smruti Koppikar, 1995)

3.      Allahabad High Court

Impeachment of Justice S. P. Sinha of the Allahabad High Court, even before the Constitution of India was enforced. The judge was alleged for not acting judiciously, falsely declaring statements, undermining the value of his position, improper exercise of judicial functions and decisions based on corrupt motives. 

4.      Punjab and Haryana High Court 

The Punjab and Haryana High Court judges; M.L. Singh, Mehtab Singh Gill and Amarbir Singh were allegedly involved in the “cash for job” scam. The scam was basically officials extracting money out of candidates for selection in governmental offices. 

Punjab and Haryana High Court judge Nirmal Yadav was charged for receiving a bag of cash at her doorstep. 

5.      Calcutta High Court

Soumitra Sen, former judge of Calcutta High Court was set to be removed for misappropriation of funds and delivering false statements about it. Although, right when the motion for impeachment was moved, he resigned.

6.      Delhi High Court

J. Shamit Mukherjee was allegedly involved in the infamous Delhi Development Authority Scam. The CBI raided his property for the same. The former judge has resigned right around the time the same broke out and some relevant files were also recovered from his residence. (The Economic Times, 2003)

Listed above are some instances of judicial corruption which were revealed to the public at large. However, no concrete investigation of measures was taken to curb this. In fact, these controversies were nowhere heard after a few months of their report. That is how strong the power of the Judiciary is. Clearly the conditions within the nation are not contributing to the growth of the nation but instead dragging down the threefold mechanism established by the framers of our Constitution. Further, in order to assess the degree of judicial corruption in India when placed on a global level, the author has placed reliance on Transparency International’s Corruption Perceptions Index and World Justice Project’s Rule of Law Index. 

Corruption Perceptions Index

This index takes into account 180 countries and their perceived levels of corruption in the public sector. As per the report of 2019, India scored 41 out of 100 and out of 180 countries, was placed 80th. Although in the year 2018, the rank was 78th. Clearly, the situation has only gotten worse. As per the report, the stagnation in control of corruption is due to “opaque financing and unfair undue influence”. Moreover, the report suggested in order to curb such pervasiveness, there is a strong need to address the severity and further public interest. Denmark was ranked 1st amongst all the countries. However, being one of the cleanest countries, it has its fair share of scams. To counter the same, the report had suggested political integrity, transparency and accountability measures and anti-corruption campaigns. Papua New Guinea scored only 28 out of 100. Yet, the Government has addressed the issue and is taking small steps towards improvement. A commission to assess the corruption level and counter it was formed. Structural changes were made to strongly investigate and punish acts of corruption. Tunisia, with a score of 43, struggles with the implementation of laws and independence of the judiciary. For the same, judicial councils were set up to bring in productive changes. The needs and measures of every country depend on its framework of Governance. Surely, India is not amongst the lowest countries. But no concrete measures to improve the situation are being taken. Corruption seeping into the judiciary is one of the biggest hits that democracy has ever taken. There is a dire need to spread awareness and take drastic steps. Efforts taken by Transparency International are a step towards a better nation. 

Rule of Law Index

The WJP Rule of Law Index 2020 presents a portrait of the rule of law in 128 countries and jurisdictions by providing scores and rankings based on eight factors: Constraints on Government Powers, Absence of Corruption, Open Government, Fundamental Rights, Order and Security, Regulatory Enforcement, Civil Justice, and Criminal Justice. (WJP Rule of law Index, 2020)

India is ranked 69 on the index which is the same as last year. When analysed as per the factors, India was ranked 85 in terms of corruption, and 41 in terms of Governmental control, hinting that India witnesses excess Governmental control as well as corruption. Further, India’s performance as to the last report remains stagnant, especially in terms of civil and criminal justice. The index is a great step towards assessing a country’s position with reference to its areas of governance. It includes 8 factors of measurement which are further divided for a detailed study. 

These indices must really be used to assess a country’s current position and act accordingly. 

Conclusion and Suggestions

In an era where the sale is not just restricted to markets and judicial functions are treated as commodities that can be bought and sold, there is not much scope for judicial and societal growth. The Judiciary was established to further the public interest. India has seen unbelievable progress with the advent of PILs, and judicial activism. The Judiciary has been used as a tool to widen the scope of statutes and decide upon cases to suit the needs of the society. For instance- The penalisation of Instant Triple Talaq in terms of Muslim Personal Laws, or the ban on child marriage practices in terms of Hindu Personal law, or even the guidelines are given via judgements to strengthen the security measures in terms of offences against women. Judiciary has overstepped its boundaries and delivered judgements that have changed the very nature of certain practices and acts. This is the crux of Judicial Independence and how it can be used, rather has been used to change the course in History. Although, the platform which was used to combat the emergence of corruption in realms of politics and business, is now a victim of the same. Based on the scandals that have come to the fore, it seems as if there is no scope for morals and professional ethics in the Judiciary anymore. What is worse is that even the judges could not turn down the hunger for power and greed, despite being laden with generous salaries and other benefits by the Government. In this society, where even the officials weigh money over credibility, there is no machinery to keep a check on the corrupt practices, paving way for it to spread even more. In addition to this, it is disheartening how the activists and media houses, who are determined to bring about changes and spread awareness, are subjected to the cruelties of contempt of court and political pressure. Possessing all these powers, the Judiciary has become the most powerful institution without a mechanism of control above it. This has led to a grave imbalance of power and miscarriage of justice. If not acted hastily and strongly, the Constitution of India will be rendered ineffective and the Democracy will face the biggest downfall in the History of India. People of India have fought a million battles that posed a threat to the nation’s democracy and public morality. But, this was done with the Judiciary playing an active role in it. Thus, based on the causes, consequences and current positions of Judicial Corruption in India, as discussed in the paper by the author in light of the cases and reports referred to, it is evident that the Judiciary has assumed the powers and control and stands undefeated even after the efforts taken to expose the corrupt practices going on in the judicial bodies and fighting the opaque and rigid walls constructed in the name of Judicial Independence. There is a dire need to break down these walls, bring in some transparency, and make the Judiciary accountable for all the unfair practices observed by the officials that interfere with the rights of the citizens and compromise the integrity and competency of this sacred institution. 

The first and foremost step towards liberating the Judiciary from the crutches of corruption is resuming the balance between Judicial Accountability and Judicial Independence. What is vital to understand here is that the Judiciary is a wing of the Government, and it derives its authority from the Constitution, just like the rest of the wings. It is functioning for the people, to protect the interest and concerns of society. This shift in power will take place only when there is transparency in the actions of the Judiciary and when the Judiciary will be open to scrutiny. Further, there must be a clear and semi-rigid distinction between the three wings of the Government. This will result in an absence of influence by the Executive and the Judiciary. The Judicial Accountability and Standards Bill must be revised so as to efficiently combat judicial corruption and be enacted as a priority. Furthermore, active steps must be taken in order to expedite the process of the Court and the procedure must be simplified to counter people from offering bribes. Moreover, the act of giving and taking bribes must be laid down more rigidly. The process of impeachment as well must be simplified in order to bring about a sense of fear of removal in the minds of the judges. Lastly, with reference to the appointment, a separate body must be instituted which is free from any superior control and influence. And with reference to the role of the media, the scope of contempt of court act must be restricted in order to stop the judiciary from misusing it as per its discretion. To tackle the lack of integrity, and ethical behaviour, Judges indulging in corrupt practices must be publicly discouraged and judges who refrain from the same or who act against such practices must be rewarded and appreciated publicly. This will drive them from within to not associate themselves with corrupt practices. Serious steps are required to free the Indian Judiciary from the deep clutches of Corruption. 

ANNEXURE

Attached herein are the statistics and data provided by (in order of attachment)- Rule of law index 2020, Corruption Perception Index 2019, and Judicial Integrity Initiative 2016.

Fig. 1- Position of India
Fig 2- Factors to measure Rule of law Index 
Fig. 3 – Corruption Perception Index Findings
Fig 4- Corruption Perception Index Findings
Fig. 5- Result of the Survey conducted by Judicial Integrity Initiative

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CORRUPTION AND POWER GAMES IN THE JUDICIARY  – THE DOWNFALL OF DEMOCRATIC INDIA.

Prisha Shah

Author

Shabri hails from Symbiosis law school, Hyderabad and spends most of her time in researching, reading and debating. Her Interest areas are IP and contract laws. For any clarifications, feedback, and advice, you can reach us at editor@lawcirca.com


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