Judicial Manipulation of India

Published on: August 25, 2011

The reputation of India’s judiciary, considered overbearing and democratically unaccountable by many, has taken a knock with the publication of a report by Transparency International (TI) called the “Global Corruption Report”.

The report, based on a countrywide survey of “public perceptions and experiences of corruption in the lower judiciary,” conducted by the Centre for Media Studies, finds that a very high 77 percent of respondents believe the Indian judiciary is corrupt.

It says that ‘’bribes seem to be solicited as the price of getting things done”. The estimated amount paid in bribes in a 12-month period it found was around 580 million dollars. ‘’Money was paid to the officials in the following proportions: 61 percent to lawyers; 29 percent to court officials; 5 percent to middlemen.”

“This is a wake-up call not just for India’s legal system, but for society and the state itself”, says Upendra Baxi, a highly regarded Indian jurist, former vice-chancellor of Delhi University, and professor at the University of Warwick in Britain. “It confirms what we have known for years and casts a shadow on the integrity of the judiciary. It also calls for urgent, drastic remedial measures.”

“The report only covers the lower or subordinate judiciary and excludes the judges of the High Courts (of Indian states) and the (national) Supreme Court. There are credible reports that corruption has permeated the higher judiciary too,” said Baxi.

In January 2002, S.P. Bharucha, then India’s chief justice, said that 20 percent of the higher judiciary might be corrupt. In recent years, several upper court judges have been accused of “irregularities”, for instance, in the preferential allotment of valuable land by state governments, and other favors.

The report of the Berlin-based TI should greatly embarrass India’s judiciary, which always takes a sanctimonious stand on corruption. This past March, two judges of the Supreme Court said: “Everywhere, we have corruption. Everybody wants to loot this country. The only solution for this menace is to hang some people on the lamppost so that it acts as a deterrent.”

However, no case of judicial corruption has ever been put on trial in India. Under the Indian system, it is virtually impossible to charge or impeach a judge.

“In India, impeachment is not feasible because it requires a huge (two-thirds) majority in Parliament,” argues Colin Gonsalves, a public interest lawyer with the Human Rights Law Network. “India’s parliamentary elections have produced hung verdicts for years. And it is virtually impossible to muster the numbers necessary for impeaching a judge. In 1993, V. Ramaswamy, a Supreme Court judge, was found culpable by a court committee. But he was politically well-connected and could not be impeached.”

This “freedom” from prosecution and impeachment further compounds the credibility crisis of the judiciary, in particular, the higher judiciary, which in India is a self-appointing entity not answerable to the legislature or executive.

The higher courts of India, shielded from public scrutiny, have increasingly turned conservative. They have recently handed down judgments which abridge or abolish labor rights, dilute environmental regulations, promote Big Business interests, and uncritically support globalization and privatization.

Judicial corruption in India is attributable to a number of factors, including “delays in the disposal of cases, shortage of judges and complex procedures, all of which are exacerbated by a preponderance of new laws”, according to TI.

Says the TI report: “As of February 2006, 33,635 cases were pending in the Supreme Court; 3,341,040 cases in the High Courts; and 25,458 cases in the 13,204 subordinate courts. This vast backlog leads to long adjournments and prompts people to pay to speed up the process. It was estimated: ‘At the current rate of disposal it would take another 350 years for disposal of the pending cases even if no other cases were added’.”

Another factor is the low ratio of judges per one million population. This is as low as 12 to 13 in India, compared to 107 in the U.S., 75 in Canada and 51 in Britain. This high workload encourages delays and adjournments on frivolous grounds. “The judicial system, including judges and lawyers, has developed a vested interest in delays as well as corruption; it promotes a collusive relationship between the different players”, says Baxi. “This works against the public interest and the citizen’s rights. But even more important is the assault on rights that has occurred under the globalizing neoliberal turn made by India’s higher judiciary since the early 1990s.”

He argues that the Supreme Court and many High Courts have redefined their roles: from defenders of human rights and Constitutional freedoms, and guardians of the public interest, to conscious promoters of neo-liberal globalization, with unrestricted freedom for capital and shrunken rights for the ordinary public.

“The tragedy in India”, adds Gonsalves “is that it’s hard to put checks on the judiciary even as it runs amok by appropriating executive powers and interfering with legislative procedures even though the Constitution explicitly bars the procedures’ judicial scrutiny.”

In recent years, the Indian courts have practiced “micro-management” of functions which properly belong to the executive, including specifying which fuel should be used in public buses, how cities should be planned and run, whether or not certain books should be censored, and whether street food should be sold.

The executive and legislature resent and chafe at this. Indeed, a first-rate conflict is brewing between these arms of the state, and the courts. There is a move to demand judicial accountability through a National Judicial Council Bill, which would allow serious investigation of corruption and other misconduct on the part of judges.

However, the Bill remains mired in conflict. The judiciary wants the Council to be manned entirely by judges, to the exclusion of members of the government, and equally important, of civil society. The executive does not.

“There are no easy solutions to the problem of making judges accountable,” argues Baxi. “But some interim partial measures can be tried. One is to appoint judicial ombudsmen from two highly-regarded statutory bodies, the Election Commission and Comptroller and Auditor General (CAG) of India. Nothing prevents the CAG from initiating an independent review of the performance of the judiciary. The CAG could produce highly credible and objective reports and help kick start a process of promoting transparency and accountability.”

It is unclear if India’s executive and Parliament are willing to initiate such an exercise. But observers say that unless corrective steps are taken, the judiciary will continue to defy democratic accountability and intrude into areas outside its domain, even while corruption and denial of justice remain the order of the day.

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