Indian judges must clean up their courts

Indian judges must clean up their courts By Bijo Francis Column: Incredible India Hong Kong, China — Corruption scandals surrounding some senior judges in India have seriously clouded the impartial image of the judiciary. There has been a lot of discussion about this of late. However, little has been said about the web of corruption that is deeply rooted within the system, particularly involving the ministerial staff who run the daily affairs of the judiciary. This is particularly intense within the criminal judiciary. Justice R. Basant of the Kerala High Court, in his speech to the concluding session of the annual conference of the Kerala Criminal Judicial Staff Association, said, “The judiciary is the last ray of hope for Indians. The failure of the judiciary will have devastating results.” This observation by Justice Basant carries considerable weight, as he knows, inside and out, the legal and illegal procedures commonly adopted by the courts. For example, in order to file an application for bail in a criminal case, a person needs to pay a stamp duty of 2 rupees (US 4 cents). But by the time the application reaches the magistrate for a hearing, a client will usually have paid 700 to 1,000 rupees (US$14-$21) in bribes. Most of it is demanded and paid within the registry of the court where the application is filed. All the court staff must do is record the filing of the application, give it a number and forward it to the bench clerk, who will then call up the applicant when the court is in session. However, this process involves a series of entries to be made in various registers. First, the application is stamped with the court seal and the payment of the court fee is recorded. This process is entered in a register. Then the application is verified to ensure that there are no mistakes, like a missing signature or an improper title. This is entered in another register. Next the application is forwarded to another court officer, who makes another entry in yet another register that records the court to which the application is being forwarded. Then the application is forwarded to the bench clerk, who calls the applicant in court. Each of these court officers demands, and lawyers make their clients pay, bribes ranging from 25 rupees to 200 rupees (US 51 cents–$4). It is an unavoidable irony of the Indian judicial system that an application for justice, filed in a court, must travel from desk to desk forcing the applicant to pay a bribe at each step. Yet it is only when the last person, the judge, demands or accepts a bribe that the matter is taken seriously and considered a breach of ethics. The rest is considered justifiable within the system, equally by the lawyers and the judges. The often-heard argument is that the ministerial staff is underpaid and overworked and therefore demanding bribes is justifiable. However, this myth is exposed as false when their salaries and the work they do is compared with workers in other government departments. In fact, lawyers support this practice of bribery in the court registries. Lawyers can also resort to unwarranted and corrupt means to get their applications priority over others; in this case they can force their clients to pay additional bribes, allowing them to make extra income in addition to their fees. There are some judges, however, who insist that such corruption is not acceptable on their watch. Justice Basant has set such an example in the places he has served. The experience he gained while a practicing lawyer, prior to his appointment as a judge, must have helped him in dealing with this issue. While serving as a sessions' judge in central Kerala, Basant insisted that every application filed at his court's registry should be included on the regular roll call the next day and presented in court without fail. If a lawyer responsible for an application had any concerns, the judge gave him an opportunity to bring them to his attention. Within a few weeks the message and tone of his court were set, and it was clear to the staff that they could no longer demand bribes. When the lawyers discovered that applications found their way to court without fail, they refused to pay bribes. The system worked without any flaws or complaints throughout Basant's tenure in that jurisdiction. However, within weeks of his departure to another post, the court staff returned to their corrupt practices. This example shows that widespread corruption results from Indian judges’ poor managerial expertise and lack of interest in dealing with such issues. A judge, in addition to being the umpire in a legal battle inside the court, is also the manager of his team, which includes the court staff. If the court staff demands and accepts bribes, both the lawyers who pay them and the judges who turn a blind eye are equally responsible for the corruption within the system. How can a litigant believe that the judiciary is an island of hope if he is forced to pay bribes as a precondition for his application even being taken up in court, to be decided “impartially”? This is like preaching rebirth to a terminally ill patient. -- (Bijo Francis is a human rights lawyer currently working with the Asian Legal Resource Center in Hong Kong. He is responsible for the South Asia desk at the center. Mr. Francis has practiced law for more than a decade and holds an advanced master's degree in human rights law.)

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