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17 January, 2011

Judges in the dock

Gulf Today

The judges are being judged. And that is not a pretty sight. When the Supreme Court decided last week to proceed with the contempt case against senior advocate Prashant Bhushan, who had refused to apologise for his statement in a newspaper interview that half of the persons who have been Chief Justice of India were corrupt, his lawyer, Ram Jethmalani, warned that it would open a can of worms.

The bench brushed aside the warning. “If it is to be opened, open it,” said one of the judges. The Judiciary undoubtedly enjoys greater credibility on India today than either the Executive or the Legislature. It earned this enviable position by going to the citizens’ rescue against the excesses of the other two. India’s Constitution gives primacy to Justice placing it above Equality, Fraternity and Liberty in its preamble. That gives the Judiciary, the final arbiter on social, economic and political justice, an exalted position in the constitutional scheme.

The Judiciary’s high reputation rests primarily on its record of providing political justice. Many victims of political injustice have been able to secure relief through the courts. However, the Supreme Court’s ruling during the Emergency upholding the suspension of all fundamental rights, including right to life, stands out like a sore thumb. Recently the court acknowledged that it was a mistake.

The Judiciary does not have an equally good record in the dispensation of social and economic justice. Litigation is costly and time-consuming, and victims of economic and social injustice, who are poor, do not have easy access to the legal system. Even if they are able to take their case to the court they are at a disadvantage as they cannot match the resources of their oppressors.

The court battle over Prashant Bhushan’s remark takes place against the backdrop of a spate of allegations against close relatives of Justice KG Balakrishnan, who retired as the Chief Justice of India in May 2010 and was later appointed Chairman of the National Human Rights Commission.

A week before Justice Balakrishnan was due to retire, M Furquan, a Delhi journalist, wrote to Vice-President Hamid Ansari demanding a Central Bureau of Investigation probe into his assets as well as those of his relatives. Ansari forwarded the letter to the government.

Furquan’s letter remained with the government without attracting much media attention until last month when newspapers and television channels in Kerala took up the issue of alleged amassing of wealth by Justice Balakrishnan’s relatives while he was the Chief Justice. Sections of the legal fraternity, led by former Supreme Court judge VR Krishna Iyer and the political parties immediately joined the demand for a probe. This is not the first time that members of the higher judiciary have attracted charges.

In the 1950s, it came to light that a chief justice of the Madras high court had given a false date of birth. Attorney General MC Setalvad advised that he be impeached. Chief Justice PB Gajendragadkar advised that he be told to resign as impeachment will bring a bad name to the judiciary. Prime minister Jawaharlal Nehru accepted the chief justice’s advice.

Under the constitution, a judge of the higher courts can be removed from office only through impeachment, a cumbersome process in which one house of parliament serves as prosecutor and the other as judge. Former Supreme Court judge V Ramswamy, the only one to have been impeached so far, could save his job as the resolution for his removal was defeated. A Calcutta high court judge is now awaiting impeachment.

The court’s power to punish for contempt has inhibited the public from levelling charges against judges the way they hurl allegations against politicians. However, allegations of corruption have surfaced from time to time and in the absence of a machinery to ascertain the truth several judges have completed their tenure under a cloud. Last month the Gujarat bar association alleged that the state high court had become a dumping ground for corrupt judges.

Prashant Bhushan is associated with the Campaign for Judicial Accountability and Reform, which has been working for two decades to improve the judicial system. The judiciary will only do further damage to itself if it punishes critics instead of facing the issue they have raised. -- Gulf Today, Januaer 17, 2011

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