Wake up call for judicary

1 TOI  12 Feb 2017 ,Jaipur edition

[2] TOI 22 Feb 2017 Jaipur edition

[3] TOI 22Feb 2017 Jaipur edition

[4] TOI 12Feb 2017 Jaipur edition

[5] TOI  14Feb 2017 Jaipur edition

[6] reports Dhananjay Mahapatra.

[7] TOI 14  Feb 2017  Jaipur edition

[8] Article by Nayana Renukumar

[9] Dhananjay Mahapatra | TNN | Sep 17, 2010, 01.16 AM IST

Former law minister Shanti Bhushan  created a sensation in the Supreme Court when he moved an application accusing eight former Chief Justices of India of "corruption", and dared the court to send

[10] Former Law Minister Shantibhushan Sep17,2010,01.16 AM IST

[11] Former Law Minister Shantibhushan Sep17,2010,01.16 AM IST

[12] THU, May 03,2007 10.24 PM IST

[13] Article by Nayana Renukumar

wake-up call for the judiciary

 INTRODUCTION

Now a days Indian judiciary is facing threat from two side. one is ,first time in the history of Indian judiciary issued contempt notice against any sitting Judge Justice S C Karnan, Judge of Calcutta high court facing a notice from the Supreme Court in a contempt case, has lashed out at the apex court, accusing it of harbouring a caste bias against him. In defiance of the SC's decision and sharply escalating the confrontation with the apex court, Karnan accused the CJI J S Khehar-led seven-judge bench of upper caste bias in initiating proceedings as he belonged to the Dalit community .Karnan virtually alleged that the court order amounts to an offence under the law to punish atrocities against Dalits and tribals and challenged the court to refer his case to Parliament.[1]

 Secondaly, The Supreme Court has made it very risky for any organisation to publish a survey on alleged corruption in lower judiciary , saying the law permitted one or many trial courts to make a reference to a high court for launching contempt proceedings against those responsible for the embarrassing the judicial system. This ruling came in an 11year-old case filed by Transparency International India (TII) and the Centre for Media Studies (CMC) which, along with their top management, were asked by a magistrate in Kangan in J&K to show cause in May 2006 why contempt of court proceedings or action under criminal defamation provisions of Ranbir Penal Code be not initiated against them. The notice was issued by the magistrate taking objection to an article in `Greater Kashmir' daily , which had quoted a survey conducted by CMS and published by TII on “rampant corruption“ in the subordinate judiciary . But neither TII nor CMS representatives appeared before the magistrate, which later in 2006 issued bailable arrest warrants against their top management.The warrants were stayed by the SC in 2006 itself. Latter on, a bench of Chief Justice J S Khehar and Justices D Y Chandrachud and Sanjay K Kaul[2] rejected senior advocate Jayant Bhushan's argument that the survey was conducted by asking litigants about their experience in court.[3]

CONTEMPT OF COURT

In defiance of the SC's decision and sharply escalating the confrontation with the apex court, Karnan accused the CJI J S Khehar-led seven-judge bench of uppercaste bias in initiating proceedings as he belonged to the Dalit community .Karnan virtually alleged that the court order amounts to an offence under the law to punish atrocities against Dalits and tribals and challenged the court to refer his case to Parliament.

He said: “The suo motu order against me, a Dalit judge, is unethical and goes against the SC and ST (Prevention of) Atrocities Act. It is certainly a national issue and a wise decision would be to refer the issue to the House of Parliament.“ The judge argued that since the order against him was “harsh“, the contempt case should be heard after CJI Khehar retired or placed before Parliament if this was not possible.

In his anxiety to respond to the SC's February 8 judicial order, Karnan addressed a four-page letter to the SC's registrar general, a post that no longer exists as it was re-designated years ago as secretary general. Karnan, who has been at the centre of several controversies, was issued a notice and asked to present himself in the Supreme Court on February 13 to explain “scurrilous“ allegations against sitting and former judges.

In response to the apex apex court's contempt proceedings, Justice Karnan said: “The suo motu petition is not maintainable against a sitting judge of the HC... I have sent representations to various government authorities regarding high irregularities and illegalities occurring at the judicial courts. I am also a responsible judge to control such high irregularities, especially corruption and malpractice. I have furnished comprehensive proof of unethical practices happening with the respective courts[4]

Calcutta high court's Justice C S Karnan did not appear before a seven-judge constitution bench headed by Chief Justice J S Khehar on Monday in defiance of the summons issued by the Supreme Court which has initiated suo motu contempt of court proceedings against him.This cold shouldering of the highest court's summons by a sitting HC judge made attorney general Mukul Rohatgi request the bench comprising Justices Khehar, Dipak Misra, J Chelameswar, Ranjan Gogoi, Madan B Lokur, P C Ghose and Kurian Joseph to frame contempt of court charges in absentia against Justice Karnan.The bench was disinclined to frame charges without hearing Justice Karnan, more importantly to secure his presence before it. For any ordinary citizen, the court might have directed the police to arrest and produce him before the court. But the contemnor being a sitting HC judge, the SC decided to give him another chance to abide by the apex court's order and present himself before it on March 10. “Justice Karnan is directed  to be present in court in person on the next date of hearing (March 10),“ the bench ordered and hinted that it would not back out from taking coercive methods to secure his presence if he failed to appear on the next date of hearing.

Two days after a contempt notice was issued to him, Justice Karnan had on February 10 written a four-page letter to the SC reiterating his charges against judges in Madras high court, seeking transfer of the contempt case to Parliament and complaining that the apex court did not give him enough time to respond. He also alleged that upper caste bias among the seven-judge bench to punish a Dalit like him was evident from the order which could itself be an offence under SC and ST (Prevention of Atrocities) Act. Appearing for Madras HC, senior advocate K K Venugopal said the reputation of sitting and retired judges, who were attacked by Justice Karnan with wild aspersions on their integrity and character, needed protection. He said Justice Karnan had accused a sitting judge of s*xual assault and worse, he called up the home of the sitting judge and verbally abused his family members.

The CJI-headed bench said, “Justice Karanan is being proceeded against in the suo motu contempt case. We had given him notice and he has been served. He has not appeared before us. For the time being, we think we should give him one more chance because the consequences are grave. When he appears on the next date, we will ask him certain questions and seek answers. We will give him time to appear and show cause why contempt proceedings be not initiated (for his conduct). If he does not appear, then we may consider issuing bailable (arrest) warrants.“[5]

A body of lawyers led by Mathew Nedumpara tried to intervene in the contempt proceedings and requested the CJI-led bench to be sympathetic towards a “stressed, disturbed and financially constrained“ Justice Karnan. He was joined by advocate Lily Thomas. But the bench sternly put down their requests and said none of them had been authorised by Justice Karnan to argue on his behalf. It said no advocate could intervene in the contempt proceedings unless duly authorised either by the contemnor or the court.

“Since contempt proceedings are a matter strictly between the court and the alleged contemnor, anyone who enters appearance and disrupts the proceedings of this case in future should understand that he she can be proceeded against in consonance with law. All that we need to say is that no one should appear in the matter without due consent and authorisation,“ the bench warned.

CORRUPTION

The Supreme Court has made it very risky for any organization to publish a survey on alleged corruption in lower judiciary , saying the law permitted one or many trial courts to make a reference to a high court for launching contempt proceedings against those responsible for the embarrassing findings. [6]This ruling came in an 11year-old case filed by Transparency International India (TII) and the Centre for Media Studies (CMC) which, along with their top management, were asked by a magistrate in Kangan in J&K to show cause in May 2006 why contempt of court proceedings or action under criminal defamation provisions of Ranbir Penal Code be not initiated against them.

The notice was issued by the magistrate taking objection to an article in `Greater Kashmir' daily , which had quoted a survey conducted by CMS and published by TII on “rampant corruption“ in the subordinate judiciary . But neither TII nor CMS representatives appeared before the magistrate, which later in 2006 issued bail able arrest warrants against their top management. The warrants were stayed by the SC in 2006 itself. Latter on, a bench of Chief Justice J S Khehar and Justices D Y Chandrachud and Sanjay K Kaul rejected senior advocate Jayant Bhushan's argument that the survey was conducted by asking litigants about their experience in court. [7]One of the most frequently used words in India, corruption signifies a range of things. In 2005, Transparency International and Delhi based Centre for Media Studies, a research firm, undertook the India Corruption Study. The survey covered 14,405 respondents over 20 states and included interviews with service providers and users (of these services). The results, published the same year said Indians pay out around Rs 21,068 crore as bribes while availing one of 11 public services. While some of the results of the survey were published, many of the details were not. The study, however, remains the most recent and the most comprehensive report on corruption in India. Apart from calculating the extent of corruption, in Rs crore, it explains the mechanics of it.

Corruption in Indian judiciary is considered pervasive: over 45% of Indians believe the judiciary is corrupt, a view shared by external assessments. Not only is corruption rampant in the lower courts, some have alleged that this corruption reaches the highest levels. In 2010, a former Law Minister declared that eight of sixteen former Chief Justices of India (CJI) were corrupt, and in 2014 a former Supreme Court judge alleged that three former CJIs made “improper compromises” to let a corrupt High Court judge continue in office. Sadly, the Indian judiciary has shown a predilection to treat every call from the executive or the legislature for greater judicial accountability as an attack on the judiciary’s independence. That concern is not altogether unreasonable given the terse history of power battles among the three branches, but it increasingly rings hollow, given the rising reports of corruption in judiciary’s ranks .

Indian judges may be nowhere near as corrupt as its politicians; but Indian judiciary, like its counterparts elsewhere, relies on its reputation for fairness, impartiality, and incorruptibility. The courts can scarcely afford any loss of public faith. Hence, it must have been a wake-up call for the judiciary to face wavering public support as it battled the[8] executive and legislature during 2014-15 on the National Judicial Accountability Commission Act (NJAC), which sought to expand executive’s say in judicial appointments and make them more transparent. When the Supreme Court finally struck down NJAC in October 2015, citing the need for absolute judicial independence, the judgment was met with both veiled skepticism and open criticism. Although the current appointment system (in which judges appoint their successors) has been relatively free of corruption allegations, the NJAC debate brought forth long simmering concerns of judicial corruption and worries that even judicial appointment was not above suspicion.

How has this come to pass? Why is public confidence in the integrity of the Indian judiciary eroding? Four main issues need addressing in the context of India’s judicial corruption:

• Corruption in lower courts: India’s judicial corruption is a cancer that begins at the lower levels and inches its way up. Spanning 600 district courts and hundreds of subordinate courts, the heterogeneous lower judiciary acts as the primary interface between Indian judiciary and its common citizens. In 2013, 36% citizens reported paying a bribe to the judiciary, a sad reality validated by many senior judges themselves. A 2007 survey that disaggregated bribe recipients showed that 59% of respondents paid bribes to lawyers, 5% to judges, and 30% to court officials for speedy and favorable judgments. The pendency of cases, collusion between lawyers of the defense and prosecution, manipulation of an opaque justice system by court officials, and the political influence in appointments of lower court judges have created a toxic justice system at the lower levels .
• Corruption in higher courts: The pervasiveness of corruption throughout the lower courts is closely connected to another problem. In a judicial system like India’s, where higher court judges are selected from the ranks of lower court judges and lawyers, there is always a possibility of corrupt judges making it to higher courts. This is especially likely when, as in India, seniority becomes the primary ‘de facto’ criterion for promotion. Once judges have been appointed to higher courts, they can use their expansive ”contempt of court” powers to suppress allegations of corruption. Indeed, the Indian judiciary’s use of contempt of court proceedings against its detractors is often blamed for reducing to a sullen whisper what should be a democratic debate on judicial corruption. For instance, those who accused the former CJIs of corruption are now battling contempt of court proceedings.
• Cumbersome impeachment proceedings. Even when there is overwhelming evidence against corrupt judges, a cumbersome impeachment process impedes their removal. Under Indian law, either 100 members of the Lower House or 50 members of the Upper House have to submit a signed complaint that is then investigated by a three-member committee comprising two judges and a jurist; if approved, the matter is debated in both Houses, and must be completed within a single session, or else the whole process must begin again in a subsequent session. It is therefore not difficult to see why the country has so far not seen a single successful judicial impeachment. Since independence, only three judges have ever faced impeachment, all three for misappropriating public funds or accumulating disproportionate wealth. Of those three, in one case the impeachment motion failed, and in the other two , the judges resigned before the motion could go through. In the two latest impeachment efforts in 2014 and 2015, one failed to gather momentum and the fate of the other remains uncertain.
• Excessive delay: India has the world’s largest backlog of cases, at nearly 30 million. The time between filing and final disposition in extreme cases can be up to 20 years in civil cases and 30 years in criminal cases. A weak infrastructure, chronic judicial vacancies, manual processes, a weak law and order enforcement system, prolonged trials and delayed judgments have been major contributors to corruption at all levels of judiciary. Conscious of the chronic delays, citizens feel compelled to bribe at all stages to hasten the trial process. Worse, the opportunities for illicit gain created by the delays create perverse incentives to keep the judicial system inefficient.



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