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14 September, 2008

Lack of accountability has corrupted the judiciary, says AHRC

The following is a statement issued by the Asian Human Rights Commission, Hong Kong:

By recommending the impeachment of a High Court judge, the Chief Justice of India has revived a dead debate concerning the Indian judiciary. On August 2, 2008 in a letter addressed to the Prime Minister, the Chief Justice recommended the impeachment of judge Soumitra Sen of Calcutta High Court.

Judge Sen is accused of having been involved in financial misappropriation before he was appointed as a judge. It is reported that in 1984 while judge Sen was practising as a lawyer he was appointed as the receiver in a dispute concerning the Steel Authority of India. It is alleged that in the capacity of the receiver he misappropriated a sum of INR 2,500,000 [USD 59523], which judge Sen reportedly paid back on orders from the court. Later, he was appointed a judge at the Calcutta High Court in 2003.

A judge accused of corruption facing impeachment, a process by which a sitting judge could be removed from service in India, is nothing special. A corrupt public servant is not worthy of continuing in service and is least desirable to serve as a judge in a court of law, a public office that demands scrupulous impartiality and untainted personality. Anyone accused of a crime must be prosecuted and the crime investigated into. The fact that the accused is a judge must not provide the person with any immunity.

Judge Sen being the first person recommended for impeachment by a Chief Justice of India does not mean that the judiciary is immune from corruption and other vicious practices. There are similar allegations against some judges in India. But not a single judicial officer was impeached so far. The only exception was the case of judge V. Ramaswami who faced impeachment in 1991, an attempt that failed due to the absence of a political consensus. It is expected that history will not be repeated. If it is repeated it would be a shame upon the Indian judiciary and its accountability.

The accountability of judges, particularly in the context of increasing allegations of malpractices resorted to by judges is a grave concern in India. As of now there is no open process for the selection, promotion and if required the dismissal of High Court or Supreme Court judges in the country. The entire process is retained within the whims of the Supreme Court. All attempts so far to enforce accountability on the judiciary were vetoed by the judiciary itself. There is also the absence of a political consensus over this issue.

Whenever concerns were raised by the public regarding the integrity of judges, either the judges in question were reportedly subjected to an internal enquiry or those who raised concern were persecuted by the judiciary.

The enquiry report concerning the allegation involving three judges of the Karnataka High Court is yet to be made available in the public domain. The enquiry that exonerated the three judges in question was completed in 2003. The accusation against Justice Y. K. Sabharwal that his sons were deriving illegal profit from their real-estate business making use of their father's job as a judge faced contempt of court action from the Delhi High Court. The court refused the defendants the possibility to take 'truth' as a legal defense.

Concerns regarding the lack of accountability of the judiciary have been expressed also by judges. Justice J. S. Verma a former Chief Justice of India has said "here is no point in saying that there is no corruption in the judiciary. No one is going to say it, much less accept it. One cannot go on sweeping it under the carpet and not expect it to show up. It is showing up now."

The accountability quotient of the Indian judiciary as of now is dependent upon convention and traditions. What is expected and believed to be done is an internal enquiry, shrouded in mystery. So far none of these enquiries have seen the light of day or brought to the public domain. The recommendation to impeach judge Sen, the first of its kind in the past 62 years, in the above context is an exception. It is reported that the Chief Justice made the recommendation based on the findings of yet another internal enquiry. The findings against judge Sen in the internal enquiry are not yet made public.

In a country where the content of a First Information Report (FIR) in a crime is a public document, it appears that the criminals among the judges receive special treatment. Indian law however does not provide any scope for discrimination in status between criminals.

What if the Chief Justice after the internal enquiry did not recommend an impeachment? It is heard that if an internal enquiry reveals corruption or other forms of malpractice by a judge the Chief Justice would then request the concerned judge to resign or to stay away from deciding cases. This situation poses a series of questions.

First of all, the very fact that a lawyer like Sen was appointed as a judge inspite of suspicions regarding his character illuminates the defects in the appointing procedure of judicial officers. What would happen if a judge attempted to be 'disciplined' within the system, outside the view of the general public whom the officer is supposed to serve, refuses to accept the request of the Chief Justice to resign or abstain from court work? Will such a judge continue to receive his salary paid from the taxpayers' money? Will the officer be allowed to continue using the facilities provided to him from the public exchequer?

What would happen to the decisions the officer has made as a judge by then? Will they be reviewed on the grounds that the presiding officer was corrupt? If a litigant has suffered damages by a decision made by the corrupt judge, will the litigant be compensated by the defaulting judge? Will the judge still be promoted if his seniority in service so requires, as it happened in judge Ramaswamy's case?

Even in cases like that of judge Sen, what if the Indian Parliament fails to impeach him? The Chief Justice will have to allow him to continue as a judge and he will continue receiving all his service benefits till he retires and after retirement as his pension. Or, can it be assumed that the Chief Justice will lobby the parliamentarians, of which an estimated 40 percent are documented criminals, to ensure that the judge recommended for impeachment will be finally impeached? What if a corrupt judge facing impeachment also lobbies?

Most of these questions are issues haunting the Indian judiciary. Justice Verma also said that in a court of 20 judges two by default are corrupt. This means that in the absence of any open accountability mechanisms within the Indian judiciary the litigant as of now faces a 10 percent chance for a case to be decided by an officer who is unfit to be a judge.

It implies that the justice quotient of the Indian judiciary is only 90 percent. Accountability of the judiciary is fundamental to its independence. Indian judiciary cannot be an exception.

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About AHRC: The Asian Human Rights Commission is a regional non-governmental organisation monitoring and lobbying human rights issues in Asia. The Hong Kong-based group was founded in 1984.

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