Higher Judiciary - Corruption - Reforms?

I have earlier written few articles on judiciary and needed reforms in the course. We have been seeing unprecedented developments in Judiciary and if we neglect as to what is happening in Judiciary now, then, for sure, entire system collapses. My colleagues and people in legal profession may defend the Judiciary and corruption if any on the ground that there is corruption everywhere and our politics also fully corrupt. What I feel is that if our Judiciary fails and if there is no fair and independent media, then, India will become like “Somalia”. In the breach of privileges case, the question has come as to who is supreme ie., whether legislature or judiciary? It was finally decided that constitutional review power has been conferred on Supreme Court. Such is the position of our Judiciary under Constitution of India and our Judiciary should play a responsible role in our system. But, if we look at the standards in Higher Judiciary, the erosion of long followed traditions and loosing moral footing in society, it is clear that we need greater reforms in judiciary. This society can bare the corruption in Politics, but, can not bare the corruption in Judiciary and especially in Higher Judiciary.

Referring to the recent impeachment motion, Dr.Arun Jaitly, has rightly opined that our in-house mechanism when it comes to Judicial Appointments etc. has failed. As I feel, Dr.Jaitly has  directly referred to the Appointments in Higher Judiciary and lack of standards. He has also constrained to emphasize that there is no way for removing a corrupt judge except impeachment motion. Dr.Jaitly was also right in emphasizing the need of correcting our Judicial System cutting across the party lines.

I have dealtwith many issues on my earlier article extracted hereunder and I want add onething. What I feel is that the salaries of our judges of High Court and Supreme Court to be created to a great extent and we may have to increase their salaries 5 times as otherwise, there may not be any meaning in giving statements and preaching something towards addressing the issue of corruption in Higher Judiciary.

I have earlier written an article on the steps required to correct our Judiciary system and my views are same on the issue even now and my earlier article is extracted hereunder.

“As a member of Bar, as part of privileged profession and as a citizen of this great nation, I used to think so deeply about the legal profession, judicial system and as to how to ensure that public truly trust Judiciary. Nobody can deny that the standards in the legal profession are being degraded day-by-day and our Judiciary is not functioning to the extent required. Many used to show reasons like delay, obsolete laws, corruption, lack of infrastructure, salaries etc. as a reason for this state. It is the responsibility of all the citizens, educated and the members of Bar especially to think as to how to restore the dignity of profession and the Judiciary and we need to fight for proper reforms for correcting the system. I do believe that correcting our system is not that much easy task unless enlightened raise their voice and the government truly wants to correct this system. Now we have a good and clean prime minister who wants our nation to be developed. Now we do have a stable government at the centre as such I believe that we can bring all the reforms needed in the next five years as our new Law Minister has said. I wanted to expose my mind as to how this Judiciary or the legal profession can be corrected and ensure that public repose strong confidence on our Judicial System. A step by step approach to be taken to correct this system and the system can be corrected only with proper planning and implementation.

Steps to correct the Justice Delivery Mechanism:

Step - 1:

      Firstly, we need to address the issue of corruption. Nobody can deny that corruption is at rampant in Judiciary. We have been reading the news papers when some vigilance wing or CBI proceeds against a magistrate or judge on the charges of corrupt practice and I would say that even these instances are isolated. When it to comed to higher judiciary, though many assert that there is so much corruption, it is very very rare to see proceeding against a corrupt judge. The issue of addressing the corruption in the lower judiciary and the higher judiciary is to be tackled on a different footing due to provisions enshrined in Constitution of India. Except through impeachment, a judge of constitutional court can not be removed assuming that the corrupt charges are proved. Our governments may not have much time to move impeachment motion even if it is willing and the procedure is cumbersome. In-between the issue of independence of Judiciary comes into play. In my opinion the steps for correcting the lower judiciary and the higher judiciary are to be as follows:

Steps to correct the lower judiciary:

      1. The magistrate or the judge has to disclose his assets and the assets of his family members as pre-condition and disclosure is to be done continually like filing a tax return every year.  

      2.  A state level authority like vigilance commission is to be separately set-up to deal with the corruption cases with separate enactment and separate procedure. Public should be solicited to express their views in writing to the authority through on-line and also in writing. The committee should have an official web-site where anyone can access and present their views which will automatically shows the view to all the public without any concealment and screening. The committees should comprise a top official from vigilance commission, a top official from CBI, a Judge of High Court and very reputed personalities from the public in general. The committee should comprise majority of reputed personalities from public and the decision on corruption to be taken by majority. While selecting the reputed personalities from public, the track record of the person, achievements, societal consciousness, the assets, the vision and mission of the person to be taken into consideration. It should function like Election Commission with complete independence and excellent set-up. If any law is to be enacted for this set-up, that can be done on urgent basis. The committee will only take a decision with regard to immediate suspension or dismissal of the judge or the magistrate and other criminal proceedings will be proceeded by the law enforcing authorities like the State Government, the Vigilance Commission and the CBI in some cases. The committees’ decision on immediate suspension and the dismissal will be final irrespective of the result of the criminal proceedings and the resultant appeal against the suspension or dismissal should go only to the Supreme Court and the appeals should not be loosely entertained by High Court. This is the complicated set-up and with proper study, understanding, planning and speedy implementation, this can be done. All independence is to be given to the committee and decision of the reputed personalities from the public or the majority of the committee should be final.

      3.  The salaries of the Magistrates and the Judges should be increased.

Steps to be taken to correct the Higher Judiciary:

      1.  All the judges should disclose their assets and the assets of their family members as a precondition and the disclosure to be done continually. If required, a constitutional amendment or a separate law can be passed in this regard. No judge or the judiciary can say that they are immune from disclosing their assets. There can't be any justification for non-disclosure.

      2.  Like the committee at the State Level, there should be a committee at the Central Level to deal with the allegations against the judges including corrupt practices. There should be on-line mechanism to receive the complaints and post their views. The views expressed by the public upon a particular judge should not be concealed or screened except in exceptional cases.  Dealing with this aspect will be a big challenge for any government in view of the constitutional provisions. Impeachment is the only thing to impeach a judge as per the provisions of Constitution of India. If need be, the constitution is to be changed. Otherwise, there should be a law saying if the committee recommends for impeachment motion, then, the government should move the impeachment. The committee should comprise Chief Justice, the Prime Minister, the head of CBI, head of Intelligence Wing and also the reputed personalities from the public. People like Dr.Jayaprakash Narayan of Loksatta who has unblemished and excellent record can be selected as the members of the committee. The committee should comprise the majority members from the public. The set-up can be similar to the present National Advisory Counsel to advice the government on moving impeachment motion. If required, a separate enactment can be passed in this regard. If constitution is not amended providing for alternative of impeaching a Judge, then, there should be a law prescribing for compulsorily moving impeachment motion.  We don't have this set-up at present though anyone can complain about the corrupt practices of a judge to the state or intelligence wing like CBI. We know the fate of our complaints and the political compulsions. But, certainly, if we enable the public to post their opinions directly in a web-site about a Judge, then, the Judge will definitely be cautious and it will certainly reduce the rate of corruption to a great extent. As there is no set-up to impeach a judge except moving the motion, many judges are bypassing the established practice and procedure too. The Judge should feel that he is simply a judge, has to read the papers, listen to the counsel, apply the law to the set of facts and pass orders. Judge should not feel that he is the lord and upon his discretion, he can pass any orders. This is very important issue and we need to concentrate more on this.

    3. Salaries of the Judges should be increased.

    4. The selection process is to be fine-tuned and despite the independence to Judiciary to some extent when it comes to appointments, we are witnessing as to what is happening when it comes to appointments. This is to be changed. There should be more inclusions in the committee which recommends for appointment and it should comprise people with excellent track record and senior counsels also can be members in the committee. There should not be any compromise in efficiency when it comes to appointments to the Higher Judiciary.

Step - 2:

     We need to concentrate on allocation of more funds to the Judiciary and infrastructure.

Step - 3:

     We need to concentrate more on legal education and standards in legal education. No truly unqualified should come out of law college and practice law. The legal education is to be reformed completely. We do have private and public participation in legal education as is the case over all. The state should give more priority to legal education and must allocate sufficient funds. We need to have a proper plan on giving permission to the establishment of law colleges, the infrastructure in law colleges, the standards, the selection of faculty and their salaries, the programmes, the subject, the exams and the practical training. The government colleges should compete with National Law Schools and it is very very important to concentrate on legal education. There should not be any college which is below the prescribed standards. The functioning of law colleges should be monitored specially. Government should keep the legal education in priority as it is very very important to strengthen our judicial system and ensure that public can get right redressel through court. We need to have a complete revamp in legal education. Only when we see truly qualified professionals in court, we can expect other things like standards, knowledge and the quality, speedy delivery etc.

Step-4:

     Like national knowledge commission etc. there should be a high level committee in delhi which looks only into the justice delivery mechanism and suggests the ways for improvement.  All issues connected to the legal profession, judiciary or the justice delivery system should come under this. The committee should send its recommendations directly to the Prime Minister in nutshell form so that the needed reforms can be brought with immediate effect.

Request to the readers:

      I have expressed my opinion and I request the readers to express their detailed opinion, the plan and as to how to correct our Judiciary and restore the lost dignity.”