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Prakash Yedhula (Lawyer)     15 October 2009

Half Of The Last 16 Chief Justices Were Corrupt

 The decision to declare assets is a big victory. Supreme Court lawyer Prashant Bhushan tells SHOMA CHAUDHURY what else is rotting in our judiciary

TEHELKA NEW MAGAZINE

It’s great judges have agreed to declare assets. But will it really help? Politicians do it too.

This decision is very welcome, even if it’s only happened under public pressure. It is proof of the power of public opinion. And even though declaring assets is a relatively minor aspect of judicial accountability, it will help. If a judge misdeclares his assets, there’s a chance someone might know he has particular properties he hasn’t declared, and may point it out. One could then examine if these can be explained within their legal income.

The debate around judicial accountability has got really hot. Are there watershed events that triggered this?

Not in my own perception, but I think for the public there were two watershed events – the Chief Justice Sabharwal case (where there was an allegation that Chief Justice YS Sabharwal’s orders to demolish commercial outlets in Delhi directly benefited his sons, who were partners with some mall developers) and the Ghaziabad Provident Fund scam. Both these cases got wide media attention. A 2006 Transparency International report said the judiciary in India is the second most corrupt institution after the police.

You’ve been at the forefront of the judicial accountability campaign. Why?

I have been witness to judicial corruption in the courts for a very long time. I know decisions are passed for extraneous considerations, but it’s difficult to get hard evidence of this. There have been highprofile impeachment attempts, for instance, on Justice Ramaswamy, Justice Punchi and Justice Anand. Yet, they all went on to become chief justices. In my view, out of the last 16 to 17 chief justices, half have been corrupt. I can’t prove this, though we had evidence against Punchi, Anand and Sabharwal on the basis of which we sought their impeachment.

What is the root cause of judicial corruption then, and what are your key demands?

Our key demand is an institutional mechanism for entertaining complaints and taking action against the judiciary. Nothing exists today. Everyone realises impeachment is impractical. To move an impeachment motion you need the signatures of 100 MPS, but you can’t get them because many MPs have pending individual or party cases in these judges’ courts. In the impeachment proceeding against Justice Bhalla, the BJP declined to sign because LK Advani had been acquitted by him in the Babri Masjid demolition case. Such political considerations prevail all the time. An in-house procedure was set up in 1999, post a chief justices’ conference in 1997, but that too is activated only selectively. For example, the complaint against Justice Bhalla was that he had purchased land worth Rs 4 crore at Rs 4 lakh — approximately — from land mafia in Noida. This was based on a report from the DM and SSP of Noida. This land mafia had several cases pending in courts subordinate to Justice Bhalla. Another complaint was that in the Reliance Power matter, though his son was the lawyer for Reliance Power, Justice Bhalla constituted a special bench while he was the presiding judge in Lucknow. He sat in the house of one the judges at 11pm at night to hear their case and pass an injunction in their favour. We asked Chief Justice Sabharwal to initiate proceedings against Bhalla, but he refused.

Similarly, Justice Vijender Jain decided the case of a person whose granddaughter had been married out of his own house. He was a close friend but he still heard and decided the case in this person’s favour. The point is, in these cases though very specific complaints were made to the then Chief Justice of India (CJI), he didn’t do anything to activate the in-house procedure. All these judges have gone on to become chief justices. Bhalla is still chief justice of Rajasthan; Virendra Jain became chief justice of Punjab and Haryana.

What’s the answer?

The first problem is that there is no independent institution for entertaining complaints and taking action against judges. There has to be a National Judicial Complaints Commission — independent of the government and judiciary. It should have five members and an investigating machinery under them. The second problem lies in the Veeraswamy judgment, which ordered no criminal investigation can be done against a judge without prior written permission of the CJI. That’s what happened in Karnataka. There was a complaint against several judges visiting a motel and misbehaving with women. When the police officer came, the judges threatened him and said no FIR could be filed against them because they were judges. This happened in the Ghaziabad Provident Fund case as well. The investigation is stumped because the CJI hasn’t given permission. We have to get rid of this injunction.

The third problem is the Contempt of Court Act. Today, even if you expose a judge with evidence, you run the risk of contempt. Judges are even seeking to insulate themselves from the RTI. We have to get rid of the Contempt of Court Act – not the whole Act. Disobeying the orders of the court is civil contempt – that should remain. Interfering with the administration of justice is criminal contempt – that too should remain. What needs to be deleted is the clause about scandalising or lowering the dignity of the court, for which Arundhati Roy was sent to jail. Finally, there is the problem of appointments. Earlier, judicial appointments were made by the government, which was bad enough. Now, by a sleight of hand, the Supreme Court has taken the power of appointments to itself. Earlier there were political considerations; now there are nepotistic ones.

Again, what’s the answer to that?

We need an independent Judicial Appointments Commission, which is independent and works full time, and follows some systems and procedures. Eligibility lists should be prepared and comparative merits debated and evaluated. You can’t just pick judges arbitrarily, and let people know about it only after the deed is done.

What are the best practices and conventions elsewhere?

We should at least have Public Confirmation hearings like in the US. In the Senate Judicial Committee, you have hearings where any public citizen can give evidence about the background of a judge that has bearing on their appointment. This is being fiercely resisted here.

Do any counter arguments hold?

None that I can see. The judges say all this will compromise their independence. Unfortunately, they are equating the independence of the judiciary with independence from accountability. Independence of the judiciary was meant to be independence from the political establishment, not from all accountability.

Are there other ways in which judicial corruption manifests itself?

There are so many. There is Justice Kapadia who decided on the Niyamgiri mining lease case in Orissa. He said Vedanta can’t be given the lease because it’s been blacklisted by the Norwegian government; but its subsidiary company Sterlite can get the lease because it is a publicly listed company. Justice Kapadia said it’s publicly listed because he had shares in it and yet he passed an order in favour of Sterlite! There is a law against judges hearing cases where there is a conflict of interest, but they just bypass it and you can’t complain because that would be contempt.

https://www.tehelka.com/story_main42.asp?filename=Ne050909half_of.asp





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 11 Replies


(Guest)

Dear Prakash ji,

 

Very good information. Our judicial system decended from British.  There should be a revolutionary action in indian judiciary system to change present system. What else one can do?

Anil Agrawal (Retired)     15 October 2009

 Please define judiciary. Is it High Court and Supreme Court only or thousands of magistrates at the grass root level. What happens there? Who will control it?

Much is made of declaration of assets. Government servants have conduct rules under which they declare their assets. Has corruption in bureaucracy been curbed even an iota. 

It is a futile exercise for academic purpose. There has been corruption at all levels since human race inhabited the earth and it will continue. Have you not read he instance of Koda, former CM of Jharkhand. He looted the State left, right and centre and all political parties were supporting him.

It serves our purpose to be corrupt. They all scratch each other's back.

1 Like

Anil Agrawal (Retired)     16 October 2009

 Why half of them were not corrupt is the question.


(Guest)

Because they have taken oath in the name of Mother India.

Shree. ( Advocate.)     17 October 2009

“Take all the robes of all the good judges that have ever lived on the face of the earth, and they would not be large enough to cover the iniquity of one corrupt judge” Quote from

Henry Ward Beecher

Anil Agrawal (Retired)     17 October 2009

Oath means allegiance to the Constitution. I do not know of any oath being allowed and taken in the name of Mother India. Remember that every corrupt government servant, corporator, MLA, MP, members of judiciary takes oath owing allegiance to the Constitution. We don't care for our aged parents and we are expected to be faithful to the country!


(Guest)

I,.............do swear in the name of God (Mother India).

 

 if swear in the name of God.........Where is secularism? 

 

Anil Agrawal (Retired)     18 October 2009

 With due respect, God is not Mother India.

Also, it would be quite interesting to read the following:

 indifference to or rejection or exclusion of religion and religious considerations

 

social movement

any movement in society directed away from otherworldliness to life on earth. In the European Middle Ages there was a strong tendency for religious persons to despise human affairs and to meditate on God and the afterlife. As a reaction to this medieval tendency, secularism, at the time of the Renaissance, exhibited itself in the development of humanism, when people began to show more interest in human cultural achievements and the possibilities of their fulfillment in this world. The movement toward secularism has been in progress during the entire course of modern history and has often been viewed as being anti-Christian and antireligious. In the latter half of the 20th century, however, some theologians began advocating secular Christianity. They suggested that Christianity should not be concerned only with the sacred and the otherworldly, but that people should find in the world the opportunity to promote Christian values. These theologians maintain that the real meaning of the message of Jesus can be discovered and fulfilled in the everyday affairs of secular urban living.

...lived, religion in such cases being but a department of the state. In the case of the Jewish people, the revealed Law of the Scripture constituted the Law of Israel. The Christian concept of the secular and the spiritual is founded on the words of Jesus: “Render to Caesar the things that are Caesar’s, and to God the things that are God’s” (Mark 12:17). Two distinct, but not...

The secularization of modern Western civilization has created a gulf between the natural and the supernatural because of modern conceptions of the physical universe as being controlled by scientifically knowable and predictable laws and as existing apart from the influence or control of God. Hence, the world becomes a profane reality that is wholly isolated from both the sacred and the...

...Middle East, Asia, and Africa, that reduced the monarchs’ authority. The concept of “divine right” was often eroded by the spread of secularism. Emerging ideas of the individual’s natural rights (as espoused by the philosophers John Locke and Jean-Jacques Rousseau and further evidenced by the Declaration of Independence of the...

...for the hidden imam. Having shared the ideals of the military patronage state, the Ottoman state became more firmly militarized and religious, as the afavid, became more civilianized and secular. The long-term consequences of this breach between government and the religious institution were extensive, culminating in the establishment of the Islamic republic of Iran in 1978.

Secularism included the reform of law, involving the abolition of religious courts and schools (1924) and the adoption of a purely secular system of family law. The substitution of the Latin alphabet for the Arabic in writing Turkish was a significant step toward secularism and made...

trends in

The word humanism comes from studia humanitatis (“studies of humanity”). Toward the end of the Middle Ages there was a renewed interest in those studies that stressed the importance of man, his faculties, affairs, worldly aspirations, and well-being. The primacy of theology and otherworldliness was over;...

...and sold, in whole or in part, ecclesiastical properties. Sweden, for example, did so in 1526–27, England in 1534–36. It is difficult to assess the exact economic repercussions of these secularizations, but the placing of numerous properties upon the land market almost surely encouraged the infusion of capital into (and the spread of capitalist forms of agrarian organization in) the...

...that, since the Renaissance and Reformation, had set the West on a different path of development from that of the rest of the world. This pattern included the individualism and, in the end, the secularism, that was the Protestant legacy. It also included the rise of science, as a method and as a practice. Both of these culminated in explosive events toward the end of the 18th century. The...

in modernization: Secularization and rationalization)

In short, modernization involves a process of secularization; that is, it systematically challenges religious institutions, beliefs, and practices, substituting for them those of reason and science. This process was first observable in Christian Europe toward the end of the 17th century. (It is possible that there is something inherently secularizing about Christianity, for no other religion...

Deciding the extent to which there has actually been any secularization of myth involves a problem of definition. If myth is seen as the product of a past era, it is difficult to determine at what actual moment that era ended. Thus, it is virtually impossible to state precisely when a certain mythical theme becomes a mere literary theme or to determine in general when myths are no longer being...

  • religion

(in study of religion: Other sociological studies)

...(which have had some impact on the formation of modern Christian theology), notably in The Secular City of the American theologian Harvey Cox. There are indications that the process of secularization does not occur in the same degree or occurs in a different manner in non-Western cultures.

In the eyes of some theologians, the very process of secularization, which progressively rules out transcendent explanations of natural and historical conditions, has been a working out of a form of eschatological expectation. Of course, the substance is quite different in the cases where people work in expectation of the Kingdom of God and in the other cases where they become...

During the 20th century philosophical interests were secularized, with the consequence that the strong link between mainstream philosophy and the discussion of religious questions was weakened. In the 1920s and ’30s the logical positivists, and later the noncognitivists, declared that metaphysical and theological (as well as ethical and aesthetic) sentences are literally meaningless because...

The secular state allowed and in some cases stimulated further growth among the Protestant churches. Apocalyptic expectation of the Second Coming of Christ contributed to the emergence of a number of important radical Protestant groups and churches. In Britain in 1827 John Nelson Darby (1800–82) founded the...

...warranted by the eternal divine law, even though it changed from time to time and from place to place, so long as it respected the limits laid down by the divine and natural law. This rationale of secular power, some have thought, preserved the idea of government under law through the disintegration of the ancient world, for recultivation in the revival of learning of the 12th and 13th...

Humanists were secularists in the sense that language, literature, politics, and history, rather than “sacred subjects,” were their central interests. They defended themselves against charges from conservatives that their preference for classical authors was ruining Christian morals and faith, arguing that a solid grounding in the classics was the best preparation for the Christian...

2 Like

(Guest)

Agrawal ji,

Many thanks for elaborate discription.

 

Vikas Kumar (Lawyer)     23 October 2009

selection process in judiciary itself is grossly defective specially higher judiciary .Constitutional protection should be only for CJI and the rest of judges should be protected only to the extent of CHAIRMAN , UPSC.

N.K.Assumi (Advocate)     24 October 2009

Dear Members, I can only say thank you for such informative contributions. Sathya's comment "I sewar in the name of God"........... Where is Secularism is worth noting. Speaking about Corruptions and tainted etc; I am reminded of the memorable words of late J.F.Kennedy, "You can be punished for pilfering a coal in the railway lines, but an influential man can get away with the whole trains with impunity" Late.Dr.Radha Krishnan, says, all good men are of one family, the only foreigners are the wicked: and one family can not fight against these foreigners in this Country.


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