To call it a colonial relic will be an understatement. To call it a judge’s autocracy will be a hyperbole. But terming this as the judicial immunity will be apt.
Far from the imaginary world of jargons, we are closely witnessing the reality that defies reasoning in the way judicial accountability is being dealt in India. In the wake of Congress Secretary Dig Vijay Singh rebuking the apex court’s expression on CBI, the court’s independence has to be reinforced. Nevertheless, this does not warrant the judicial body to go unquestioned. The need of the hour is to evolve a mechanism allowing investigation of cases against corrupt judicial authorities.
Tracing its roots, Indian Constitution is drawn from multiple sources and one of its foundations is the system of checks and balances. Indian Parliamentary system has lesser avenues for checks and balances within the system. This demands external bodies (that are not part of the three main organs of the government) to be effective in maintaining checks and balances.
The executive is controlled by the legislature via motions and adjournments while legislature is controlled by judicial activism. But there is no organ to control the judiciary except a few instruments that the Constitution recognizes. Impeachment procedure is one such system of control which is an extreme step and this extremity brings in sheer immunity. This has naturally resulted in rampant corruption to thrive in judiciary as even reported in www.ipaidabribe.com. A bribe story reported in the site mentions the extent of corruption among the lower staff, right under the nose of judges in a court. Another story painfully narrates an instance where a case was fought but the judgement was already pre-determined even before the case begun in the court. Thanks to the right connections and of course, the power of money! Similar is the case where money brought victory in a case, defying the institutional credibility. Such instances reflect the way court proceedings are emerging as theatrical expressions aimed at eye washing the parties involved. To check such malpractices, there is an internal corrective mechanism that the courts have evolved like insisting on adherence to judicial standards and voluntary disclosure of assets. However these methods, without statutory backing, are nothing but a paper tiger.
Moreover, on the legislative front, the government is addressing these issues by formulating the Judicial Standards and Accountability Bill. Welcome back, cousins of paper tiger! The bill is sure not to stand the test of time due to the way it has been structured. The bill has a complaint procedure against judges, which will be forwarded to the Oversight Committee and then to the Scrutiny Committee for further investigation. Even if accusations are valid enough to be pursued by these investigative bodies, the final result cannot be more than a warning or a recommendation to the government. All the musical chair for nothing!
Moreover, judicial secrecy barring RTI and ambiguity surrounding judicial appointments are also illustrative of the fact that the system is built up to protect the judge even in the face of lapses in ethics by the judge.
This shows a self-defeating mechanism in place. The body that is perceived to be the protector of fundamental rights cannot go unregulated. This is precisely because it is part of a responsible and accountable system called democracy.
An independent Lokpal is recommended by social activists as an antidote to check this rampant corruption in judiciary. What has to be worked out is the nature of selection committee, nature of the composition of Lokpal body (ratio of government authorities & civil society representatives), tenures and scope of its jurisdiction (whether it will cover lower as well as higher judicial authorities). Since this will require a constitutional amendment to be passed, it will be ideal if political parties work in unison in evolving a legislation aimed at correcting the existent mechanisms.
Though such legislations will not translate into immediate creation of vote banks, in the long term, the stakes are as high as the trust in the state itself. The state cannot afford to lose its credibility and sincere expression to save this credibility is the sole resort.
By Divya Komala
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