“No man is above the law and no man is below it; nor do we ask any man’s permission when we ask him to obey it,” said President Theodore Roosevelt famously while addressing the US Congress more than one hundred years ago.
In order to mitigate corruption anywhere in the world, judges and the justice machinery deserve special attention because, they are, after all, inter-alia, entrusted with the task of “vacuum cleaning” corruption across all walks of life in any nation. If the vacuum cleaner itself gets clogged, it stands to reason that it will not be able to do a good job. How does the Indian judiciary fare in this regard?
At this juncture, let me make an introductory remark to the effect that there is no question that the Indian Supreme Court is a great institution, which Indians can legitimately be proud of. Even on the corruption issue, it has time and again been instrumental in ordering investigations by the CBI or independent panels into allegations of corruption even by senior ministers in central and state governments.
The Supreme Court is not, however, a paragon of virtue that stands in splendid isolation from the rest of society; it would have been rather surprising had this been the case. A decade ago, in an interview, former Chief Justice P. Sathasivam confessed that the judiciary was “not untouched by corruption.” Corruption is also not the only issue that has tainted the careers of some justices. Allegations made by legal interns surfaced against Justice Ganguly, Justice Swatantar Kumar, and even former Chief Justice Dattu. While these allegations have not been proved in a court of law, they have nonetheless cast a shadow on the moral uprightness of judges at the apex court. As far as corruption is concerned, allegations have surfaced even against a sitting judge of the National Human Rights Commission, who happened to be an erstwhile Supreme Court judge.
Article 11 of the United Nations Convention against Corruption, 2003 emphasizes the decisive role of the courts in combatting corruption. Our Indian Constitution envisages in-house mechanisms to deal with corruption within the judiciary for it to remain independent. Clearly though, these are not working as well as they should. According to a statement made in December 2021 by former Law Minister Kiren Rijiju, in the previous five years, more than 1,600 complaints were received by the Chief Justice of India or Chief Justices concerned of respective High Courts.
How does one root out corruption in the judiciary? Former Chief Justice Sathasivam believed the solution for eliminating corruption lay in the hands of the litigants. He argued that “the litigants must take the responsibility for bringing into light such occurrences by making a grievance petition before the Chief Justice of respective High Courts and also to the Chief Justice of India.” Further that “if a prima facie case is made out through the preliminary enquiry, then the judge should not feel hesitant to adopt the prescribed procedure under the mandate of the Constitution.” Sathasivam J. did not, however, offer up any suggestions on how to make the litigants more pro-active in this regard, and how to allay quite legitimate fears that they may be punished for making any such complaint.
Meanwhile, the Supreme Court itself speaks of how numerous cases have come to its attention of corruption in the High Courts. Indeed, one can legitimately suppose that on the issue of corruption within the judiciary, the High Courts across the country fare worse than the apex court itself.
Finally, to the subordinate judiciary, where the problem of corruption is pervasive. The Supreme Court has often vented out its anguish on corruption in the lower courts. Another former Chief Justice of India V.N. Khare spoke in an interview on how corruption was rampant in the lower courts. The interviewer asked him if the relevant High Court was not responsible for allowing this to happen. He conceded that the High Court inspecting judges went with a “lot of band baja”, but were presented with a rosy picture and often did not have time to do a proper inspection. In his view, it was overwork at the level of the High Court that prevented a closer monitoring of the trial courts.
Individual variations in corruption within the justice system exist from state to state. Indeed, this is a fertile area for young researchers to investigate. It can be reasonably anticipated that research will reveal corruption that exists in the range of “medium to high degree”. “Low” is unlikely to figure in even a single state or Union Territory in the country.
If our judges are not saints, what about the rest of the people working in the world of the judiciary? Regrettably, the judicial milieu is not spanking clean in terms of either the integrity of the judges or with respect to investigating officers, prosecutors, court clerks and other support staff that also exercise crucially important functions.
Our present Supreme Court Chief Justice, the Hon’ble D.Y. Chandrachud has a lot on his plate currently, but he also has another 18 months to use existing constitutional provisions as best as he can to usher in a cleaner climate within the judicial realm. He may require support from the central government to recruit more judges, as Transparency International has concluded in one of its reports that a low judge-population ratio in India is one of the important ‘enablers’ of corruption. The Judiciary and the Executive need to get their act together in this regard so that the “vacuum cleaner” can start to work more effectively and all of us can then take pride in seeing our nation climb up the corruption rankings, where we are currently listed as the 85th least corrupt country. Meanwhile, we, the people of India, can but wait and hope.
Rajesh Talwar is the author of 36 books across multiple genres, and has worked for the United Nations for over two decades across three continents. He is the author of “Courting Injustice: The Nirbhaya Case and Its Aftermath”.