LAW RESOURCE INDIA

Who judges the justices?

Posted in JUDICIAL REFORMS, JUDICIARY, JUSTICE by NNLRJ INDIA on March 3, 2011

Supreme Court of India

Justice B N Srikrishna (Retd.)

IN THE INDIAN EXPRESS

In the Arthashastra, Kautilya makes a profound observation: “Just as fish moving deep under water cannot be possibly found out either as drinking or not drinking water, government servants may not be found out while taking money for themselves.” He then goes on to forebodingly remark, about the opacity in governance machinery, that “it is possible to ascertain the movement of birds flying high in the sky, but it is not possible to ascertain the movement of government servants or their hidden purposes.” But even Kautilya with his remarkable perspicacity might have been amazed by the current evens in the country.

Basically, any act of corruption in public office involves the misuse of public office for private gain. In other words, it involves a public official benefiting at the expense of either the taxpayer or an average person who has come into contact with the government machinery. It also involves violating of the human rights of those whose legitimate benefits are intercepted and misappropriated by the dishonest public official.

Four tests help to determine if there is corruption in any transaction. First: transparency. Then, accountability, and reciprocity. And finally, generalisation. When an action fails on one or more of these tests, there is sure to be corruption.

The test of transparency fails when things are done in a covert manner without allowing the details to be disclosed to the public at large. The test of accountability fails when the person doing an act is not answerable to anyone else, or does not care to be answerable for his actions. The test of reciprocity fails if the answer to the question “Would I be hurt if others did the same thing to me?” is a yes. Finally, the test of generalisation fails when the answer to the question “Would it harm society if everyone did the same thing?” is answered positively. The first two tests are objective, while the latter two are subjective.

Corruption comes in a variety of garb. For most people, what probably occurs when they hear the word “corruption” is bribery; but other common types of corruption also exist, like fraud, nepotism and embezzlement. Each one of them is ethically negative and has a deleterious effect on society.

Going by Kautilya’s prescriptions, it would appear that corruption in public offices existed in India at least from his time. What is worrisome for us today is the blatant level to which corruption has descended. Even during the British Raj, it was acknowledged that there was corruption in the government apparatus. The innumerable laws, rules, financial manuals and accounting procedures designed by the British seem designed with an utter lack of belief in the integrity of government servants. Nonetheless, the common man was not harassed in his day-to-day transactions, as at the top there was someone with impeccable integrity and sense of justice to whom one could appeal and expect justice. Judges were also in this special category of public officers. The British practice of addressing judges of the superior courts as “justices” evidences this widely held belief. Judges were believed to be embodiments of justice and hence addressed as justices.

Plato, in The Republic, his monumental work on government and morality, posed the crucial problem. According to Socrates, the perfect society relies on labourers, slaves and tradesmen. The guardian class is to protect the city. The question is put to Socrates: “Who will guard the guardians?” — or, “Who will protect us against the protectors?” Plato’s answer is that they will guard themselves against themselves. We must tell the guardians a “noble lie”. The noble lie will assure them that they are better than those they serve, and it is therefore their responsibility to guard and protect those lesser than themselves. We will instill in them a distaste for power or privilege; they will rule because they believe it right, not because they desire it. What remarkable foresight! What a sense of déjà vu today!

The 1st-century Roman satirist, Juvenal, asked in a similar vein, “Quis custodiet ipsos custodes?” — “Who will guard the guards themselves?” This is the dilemma facing society today, with protectors seeming to turn predators. What was once considered the high ground of morality and ethics, untouched by the waves of venial conduct, is now lamentably and increasingly lapped by waves of corruption. The ramparts of the institution of the judiciary, once considered impregnable to the assaults of unethical behaviour, seem to be crumbling one by one. The impossible has been happening, as is suggested by the series of cases of misbehaviour by judges of the higher courts that are coming to light. The peccability even of those considered paradigms of virtue has exploded the noble lie that Socrates once assiduously advocated.

We entreat them that are placed upon the exalted seat and entrusted with the awesome power of rendering judgment over others, to reflect upon the words of the Good Book: “Ye are the salt of the earth: but if the salt have lost his savour, wherewith shall it be salted? It is thenceforth good for nothing, but to be cast out, and to be trodden under foot of men.” About them that deviated from the narrow path of rectitude, we may sadly say with Robert Browning: “Just for a handful of silver he left us/ Just for a riband to stick in his coat —/ Found the one gift of which fortune bereft us/ Lost all the others she lets us devote.”

Corruption is condemnable — and judicial corruption doubly so, for it entails, additionally, breach of the trust that society puts in judges. Manu says that the punishment for an offence for a learned man should be double that is given to the ordinary man. Thus should the punishment be for judges who deviate from rectitude.

The purity of gold is tested by scratching, hammering and fire assay. Persons whom society places on a pedestal must also be similarly tested by fire. Guaranteeing judicial independence without guaranteeing the quality of the judge is counterproductive. Even if the nominations are made by a judicial collegium, the nominees must be put to rigorous public scrutiny of their private and public conduct, with only those that ring true being selected. Even after selection and appointment, anyone found lacking in probity must be swiftly and condignly punished for the double offence. These are doubtless tall orders — but by no means impossible to achieve, if corruption is to be eliminated from the hallowed judicial precincts.

The happenings today must act as the wake-up call for all men and women of conscience holding positions of power. For God’s sake, betray not the trust that society has put in you. It is also time for society to resolutely say that there shall be zero tolerance towards corruption.

The writer is a former Supreme Court judge

http://www.indianexpress.com/news/who-judges-the-justices/757056/0

3 Responses

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  1. VIJAY SHARMA said, on March 3, 2011 at 15:58

    Just as integrity, quality and competence is of utmost importance so far as the judges of the High Court and the Supreme Court are concerned. Who would judge these aspects of a judge. There is a strong case for appraisal system to be put in place. The nature of conduct in the Court room, quality of orders, competence & learning be put to test at-least twice in first two years by the bar as well as the bench and the one who succeeds alone should be confirmed. A lot of poor appointees are a liability to the nation. It is a case of grave injustice to the nation and its people.

  2. VIJAY SHARMA said, on March 3, 2011 at 16:40

    There is an equally serious case of judging the quality and competence of the judges. There should be an impartial,fair and transparent system of appraisal by the bar as well as bench. The appraisal should be with regard to the Court room behaviour/conduct, quality of orders/ judgement and competence. These aspects should be tested on a regular basis for up to two years and should be a criteria for confirmation. This is the only way to weed out bad and poor quality appointees whose sole qualification to the appointment is nepotism and other extraneous consideration.

  3. Venkatesh P. Dalwai said, on March 3, 2011 at 17:31

    Candidly learned author admits corruption in judiciary and naturaly such information comes to him due to the office held by him in various levels as Judge. Why did he not become whisitle blower during his tenure while in post. Is preaching and gyan comes only after retirement creating embarassment for present judges.


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