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RIGHTS-INDIA: Judiciary On Trial

Ranjit Devraj

NEW DELHI, Jan 4 2011 (IPS) - Rights activists hope that a contempt case before India’s Supreme Court will add impetus to calls for greater accountability in the judiciary, the integrity of which has been seriously questioned in recent years.

“It is important for the judiciary to do everything it can to earn and retain the confidence of ordinary people who look up to the judiciary as the first recourse and last hope in all the difficulties they face,” Maja Daruwala, director of the Commonwealth Human Rights Initiative, told IPS.

At the centre of the contempt case is well-known lawyer and convenor of the Campaign for Judicial Accountability and Judicial Reform (CJAR), Prashant Bhushan, who faces charges for stating that at least half of India’s past 16-17 chief justices were either corrupt or of doubtful integrity.

“In my view, out of the last 16 to 17 Chief Justices, half have been corrupt. I can’t prove this, though we had evidence against [former chief justices] Punchhi, Anand, and Sabharwal on the basis of which we sought their impeachment,” Bhushan told the Tehelka newsmagazine.

Issued with a notice of criminal contempt proceedings against him, Bhushan filed an affidavit standing by his view that “at least since 1991, and even prior to that… there has been considerable corruption in the higher judiciary, the main reason for which has been the lack of credible mechanisms for securing accountability”.

Bhushan pleaded that he, and his colleagues in the campaign, have been demanding the creation of a National Judicial Commission to transparently select and appoint judges of the higher judiciary, as well as to investigate complaints against them.

The case is being closely watched by human rights activists concerned by eroding standards of justice delivery in the country.

“It is important for the judiciary to do everything it can to earn and retain the confidence of ordinary people who look up to the judiciary as the first recourse and last hope in all the difficulties they face,” Daruwala told IPS. “The whole process of appointments to the judiciary needs to be reviewed as also how judges at the lower level are supervised since that represents the first gateway for ordinary people”.

She added that while it was important for the judiciary to retain its independence from the legislature and executive it cannot see itself as non- accountable.

In a Jan. 4 statement the Asian Legal Resource Centre (ALRC), an independent regional rights watchdog, said that over the last 15 years the Indian judiciary had faced a series of controversies “involving allegations of corruption and nepotism” among senior judges.

“It is not a matter of mere unpleasant coincidence that some of the suspected judges have served as chief justices, but on the contrary, it exposes the built- in defects of the Indian justice institutions – a fact that lawyers, a former law minister, experienced journalists and many of the former senior judges in the country equally agree upon,” the ALRC statement said.

ALRC described as “unfortunate” the contempt of court proceeding brought against Bhushan for attempting to bring “long overdue transparency and accountability into the judiciary, particularly within the higher judiciary”.

The contempt case is coming up at a time when allegations of corruption are being brought up against K.G. Balakrishnan, who retired in May as India’s chief justice and went on to become chairman of the National Human Rights Commission.

Balakrishnan’s tenure as chief justice was controversial because he had opposed mandatory disclosure of judges’ assets, as well as bringing of the judiciary under the Right to Information Act.

Even after the passage of the Right to Information Act, the Supreme Court had refused to share any information with the public about the manner in which judges had been selected for appointment and transfer.

While Balakrishnan presided over the judiciary, serious charges of corruption were brought up against judges Soumitra Sen of the Calcutta High Court and P.D. Dinakaran of the Karnataka High Court.

Sen, who was found guilty of misappropriating public funds by a judicial committee appointed by Balakrishnan, now faces impeachment by Parliament.

Dinakaran was to have been elevated to the Supreme Court by a committee headed by Balakrishnan, but had to be dropped following serious objections raised by the Bar Council of India.

According to the ALRC statement Balakrishnan’s chairing the NHRC has implications for the “A” rating that India enjoys with the International Coordinating Committee of National Institutions for the Promotion and Protection of Human Rights at the United Nations.

Bhushan, in his defence, says that in order to build public opinion to bring about constitutional and other legal changes to secure judicial accountability it is necessary to frankly discuss existing corruption in the judiciary.

Contempt laws, he said, have been used to deter and stifle exposure of corruption in the judiciary and also to gag the media.

Besides resorting to contempt laws, the judiciary has, through various rulings, armed itself against criticism or investigation. In 1992 the Supreme Court ruled that police cannot move against the sitting judge of any high court without its permission.

Considered the most powerful in the world, India’s judiciary can declare a law duly passed by parliament as null and void if it is interpreted to be in conflict with the basic principles of the constitution.