Unconstitutional accretion of power to itself appears to be the root cause of the judiciary’s problems
Abani Kumar Sahu Delhi
Some days ago, a daily broke the news on its front page: Chief Justice of Karnataka High Court Justice PD Dinakaran had been “summoned” by the Chief Justice of India to explain some alleged charges of corruption including possession of assets disproportionate to his known sources of income. He had already been cleared by a collegium of the Supreme Court for elevation to the apex court.
Subsequently, office bearers of the Supreme Court bar association and a few legal luminaries met the Chief Justice of India and the law minister. They raised objections to the proposed elevation of Justice Dinakaran pending signature with the law ministry. The judge has apparently denied these charges. Other legal luminaries did not go public with their objections even though they did not mind adding grist to the rumour mills.
After this, lawyers in the Karnataka High Court in Bangalore, too, ratcheted up tension. In an unprecedented move, perhaps simulated self-righteousness, they demanded that Chief Justice Dinakaran must not sit on the bench until he was cleared of corruption charges.
What are the charges against Justice Dinakaran? Were these not known before he was cleared by the collegium of the Supreme Court? Will he now be cleared for elevation before his name is cleared of corruption charges? Will this be done through the secretive in-house procedure adopted by the judiciary for allegations of corruption concerning judges? Would it be as per the ordinary law of the land like it is in every other democracy? Are there any other corruption allegations against other judges which are not known to the bar or public as yet? These are questions that require satisfactory answers.
Over the last two-three years, beginning with the action of preventing investigation into serious documented corruption charges and initiating contempt of court proceedings against journalists who sought to expose it (the Mid-Day report of alleged corruption of former Chief Justice of India YK Sabharwal), the higher judiciary is gradually losing it.
The secretive in-house mechanism adopted by the judiciary to tackle corruption within does not show any signs of results. The series of corruption scandals and the absence of results are too many, too recent, too well-known and serious to be forgotten so quickly by a more aware RTI-conscious public. For once, the public knows that the judiciary cannot shift the blame for this to politicians and hope to get away with their reputation intact.
Our squeaky clean Prime Minister Manmohan Singh has himself raised the issue with his customary politeness in the presence of the Chief Justice of India on April 19, 2008. He had said, “Corruption is another challenge that we face both in the government and the judiciary.” Then, on September 11, 2008, he demanded “introspection” in the judiciary following a series of corruption scandals.
The unconstitutional accretion of power to itself appears to be the root cause of the judiciary’s problems. Under the specious rubric of preserving judicial independence, during the periods of weak executive governments in the coalitional democracy era, a nine-judge bench of the Supreme Court ruled that a collegium of judges in the Supreme Court would finally clear the appointments of judges to the high courts and the Supreme Court [(1993) 4 SCC 441]. This was declared by HM Seervai, a respected jurist, as constitutionally “null and void”. The judiciary being creatures of the constitution had no legal power to amend provisions in the constitution except as per the procedure laid down therein.
In 1991, the Supreme Court put the judiciary beyond accountability to the criminal law of the land. In Justice Veeraswamy’s case [(1991) 3 SCC 655)], a chief justice of the Madras High Court was chargesheeted by the CBI in 1977 for possession of assets disproportionate to his known income. The apex court asked for quashing the chargesheet on the basis of among other things, an astounding question: if a judge could be called a public servant as per the Prevention of Corruption Act in spite of an unambiguous definition to that effect in Section 2 (c ) (iv) of the Act.
Judges answered 4-1 that a judge was a public servant. But, instead of confining themselves to the question, they violated the law of the land and directed that “no criminal case shall be registered under Section 154 CrPC, against a high court judge, chief justice of high courts or a judge of the Supreme Court unless the Chief Justice of India is consulted in the matter. Due regard must be given by the government to the opinion expressed by the Chief Justice. If the Chief Justice is of opinion that it is not a fit case for proceeding under the (Prevention of Corruption) Act, the case shall not be registered”.
Justice JS Verma, a hyperactivist judge, strangely ruled that a judge is not “a public servant”. Reasons behind this are unedifying and insupportable. The spate of recent judicial corruption scandals and progressive degradation of the judiciary’s reputation could have been averted if the Supreme Court had not ruled that judges are not accountable to the ordinary law of the land.
These two judgments are devoid of moral legitimacy and sound legal basis that has led to the accretion of judicial power. Over time, it has resulted in the judiciary being plagued by the corrosive effects of absolute unaccountable power. With respect, my lords, you have so often reminded the errant executive of Fuller’s dictum during your activist interventions: “Be ye ever so high, the law is above you”. This applies to the judiciary as well.
How do other liberal democracies handle their corrupt and dishonest judges? Through normal regular laws applicable to others. In Australia, a common law jurisdiction like India, the case of a popular, activist Chief Justice Lionel Murphy of the Australian High Court (equivalent to the Supreme Court of India) will exemplify this. He was investigated, prosecuted and convicted for attempting to pervert the course of justice by using his influence over a magistrate to cause him to act otherwise than in accordance with the law in the matter of committal proceedings concerning a person accused of forgery and criminal conspiracy in 1985. [R v Murphy (1985: HCA 50): (1985) 158 CLR 596)].
The Chief Justice of India is proceeding with a large judicial delegation to Australia for a conference in a few days. It is hoped he would imbibe much-needed lessons in the rule of law while he is there and implement them on his return. Otherwise, the taxpayers’ money will not be well used.
In other common law jurisdictions like the United States, it is the same: one law for all. This is the quintessence of the rule of law. In the 1980s, the FBI carried out a series of investigations. They also used undercover operatives to probe gangster-police-legislator-advocate-judge nexus in Operation Greylord and Operation Gambat. It resulted in the indictment of 92 officials including 17 judges, 48 lawyers, 8 policemen, 10 deputy sheriffs, 8 court officials, and 1 state legislator. Most of them were convicted while a majority of them pleaded guilty.
Chief Justice of the United States William J Rehnquist wrote of one of the convicted judges, Thomas Maloney, “Maloney was one of many dishonest judges exposed and convicted through Operation Greylord, a labyrinthine federal investigation of judicial corruption in Chicago… Before he was appointed to the bench, Maloney was a criminal defence attorney with close ties to organised crime who often paid off judges in criminal cases…Once a judge, Maloney exploited many of the relationships and connections he had developed while bribing judges to solicit bribes for himself.” [Bracy v Gramley 520 US 899 (1997)].
It cannot be argued away that the Indian system is different from developed democracies because even in a former British colony like Trinidad and Tobago in the West Indies, it is the same: the ordinary criminal law applies to all dishonest and corrupt judges, without exception.
As recently as 2006, serving Chief Justice of Trinidad and Tobago Justice Satnarine Sharma was investigated and prosecuted for attempting to influence the decision of a chief magistrate hearing a case concerning the failure of Basudeo Pandey, leader of the opposition and a former Prime Minister to disclose certain assets before the Integrity Commission. This was about the same time the Mid-Day journalists were sentenced for contempt of court for their reportage.
After another bench of the high court, where he was the chief justice, dismissed his application for quashing the prosecution proposed against himself, Chief Justice Satnarine Sharma appealed before the Privy Council. In a unanimous judgement, the Council dismissed it with costs. In the lead speech delivered by Lord Bingham of Cornhill, the senior-most Law Lord from the House of Lords, the following salutary ratio decided the matter, and, it is too good to be summarised:
“The rule of law requires… the criminal law of the land should apply to all alike. A person is not to be singled out for adverse treatment because he or she holds a high and dignified office of state, but nor can the holding of such an office excuse conduct which would lead to the prosecution of one not holding such an office. The maintenance of public confidence in the administration of justice requires that it be, and be seen to be, even-handed.” [(2007) 1 WLR 780]: [(2006) UKPC 57]
This ratio is so impeccable in moral logic and sound in law that it can be relied upon by the five-judge bench of the Supreme Court to strike down the odious single directive that requires permission to be obtained by the investigating agencies from the government for registering and investigating cases against government officers of the rank of joint secretary and above, as being simply and absolutely, ultra vires the constitution.
As the ultimate guardians of the rule of law, one would expect the judges to set a better example by submitting to the regular law instead of giving themselves and insisting on extra-constitutional extra-legal privileges for themselves that are not found in any other democratic country in the world.
The bench and the bar may do well to appreciate that in this age there is an accountability revolution in India that is sweeping across the wielders of public power. Different organs of governance are gradually being called to account by the ultimate sovereign: the public. It would be unrealistic, unnecessary and unworkable for the judiciary to persist in its unfounded obstinacy on playing by self-created, self-serving and (ultimately) self-destroying rules that are in violation of the ordinary of the land and contrary to the rule of law. This, according to AV Dicey, requires that “every man, whatever be his rank or condition, is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals”.
The approach of other democracies towards errant judges is part of a continuous trend of applying the ordinary law. In the United States, even less than a month ago, on August 27, 2009, Justice Thomas Spargo of the New York State Supreme Court, was convicted for attempted extortion and demanding a bribe of $ 10,000 after a three-day trial based on the investigation conducted by the FBI that also included telephone intercepts of calls made by the judge. (http://www.usdoj.gov/opa/pr/2009/August/09-crm-881.html)
In the absence of any authentic material, it is impossible to say if Justice Dinakaran deserves to be elevated or investigated. The corruption charges are not known clearly. Basic propriety and decency demand that he deserves an apology and elevation, if the charges are wrong. On the other hand, the ordinary law requires that he deserves to be prosecuted like any other public servant if the corruption charges are well-founded on facts. Justice, and if I may say so, the rule of law like charity must begin first at home – the temple of justice. Otherwise, the public will refuse to come to the courts for justice anymore.
It maybe tempting for the judiciary, after the media publicity and the bar’s concern have died down, to resort to other self-adopted, legally flawed and practically failed approaches on this matter. For instance, asking the concerned judge to go on leave or transferring him to another high court in the Northeast or not allotting any work to him, but paying him nonetheless for not working.
All pay and no work is neither about the rule of law nor about administrative wisdom. It’s more so in the age of self-imposed austerity in times of drought. The judiciary may do well to appreciate that the stage is not yet reached where the public have become irreversibly cynical. They appear to prefer, in spite of increasing disillusionment, to see the judiciary observing the rule of law on their own instead of at the behest of any eager political executive help from outside.
Although their past record makes me sceptical, I still have some hope that our judiciary may yet rise to the occasion of submitting themselves to what they expect everybody else to submit to: observance of the ordinary law of the land.
The writer is an advocate of the Supreme Court