For judicial probity

Print edition : October 24, 2008

The P.F. scam is an example of the lack of controls in the judiciary, which enabled people in the system to abuse it.

Judges must be free from graft, nepotism, abuse of power, and arrogance. They should be the paradigm of clean personal life, open and accessible custodians of public justice and paragons of moral excellence and humanist simplicity, sans consumerist craving and greed to grab.

Justice V.R. Krishna Iyer, Judges are public servants, not bosses, The Hindu, May 2, 2008.

TO describe Chief Justice of India, Justice K.G. Balakrishnans recent order handing over the investigation of the Provident Funds (P.F.) scam in Uttar Pradesh to the Central Bureau of Investigation (CBI) as historic would be to state the obvious. Read in conjunction with his recommendation to the Central government that a Judge of the Calcutta High Court be impeached for dishonesty, this directive should warm the hearts of all those who have been crusading for great er judicial transparency and accountability.

While this is no doubt a positive development by itself, I would attach greater importance to its impact on a small section of the judiciary, which believed that all talk of integrity was mere rhetoric and that it could carry on unchecked with its ways of dispensing justice.

Some members of this segment were callous and derisive of whispers in the corridors of courts, which spoke unmistakably of corruption in the judiciary. Challenges to the Supreme Court that it dare not act were also heard in some quarters, what to speak of the cynicism of senior members of the Bar all over the country that nothing could help to stem the rot. In ordering a CBI investigation, Justice Balakrishnan has indeed crossed the Rubicon and thrown down the gauntlet at those who would not mend their ways. (His recent press chat, during which he was clear that black sheep in the judiciary would not be spared, may have been unusual but was required as a bitter medicine to those who brought a bad name to the whole institution.)

The average citizen, dismayed by growing delays in the disposal of cases, the unpredictability of judicial orders and a nagging suspicion that many judgments were influenced by narrow sectarian considerations, will have nothing but admiration for the Chief Justice for his courage and candour.

I wish the media takes extra pains to disseminate in simple language the underlying import of the order to as wide an audience as possible. Only this will make the common man realise that we are heading, albeit slowly, towards achieving the needed standards of probity in public life, about which the venerable Justice V.R. Krishna Iyer talks so often with anguish.

I am happy at the recent developments for several reasons. To start with, for the first time, there is an unqualified admission time that there is corruption in the judiciary. Earlier protestations to the contrary were facetious to say the least. So was the debate over the extent of corruption, whether it was just 10 per cent or more. Statistics speak only of cases unearthed. What about the enormous number that has gone undetected?

Also, we want 100 per cent integrity if that is achievable in the judiciary because it is the last hope for a victim or an accused who has been framed. I would expect the same of the police and the medical profession. Neither can deviate from ethics without causing harm to society.

Justice Balakrishnans order is a shot in the arm for all of those who are dismayed by what they see around them in public life. This stern action seemed a pipe dream until a few years ago.

Also, the myth of the judiciary as a holy cow that is beyond adverse comment has been exploded. It has been established beyond doubt that Judges and their conduct in that capacity can be discussed as long as such a discussion did not border on slander and any charges made were based on verifiable facts. While rumour-mongering will definitely be frowned upon and may entail legal action, specific complaints which can be probed into were most welcome.

Finally, in the absence of an in-house mechanism that is beyond reproach within the judiciary, the resort to an outside investigation agency, which normally looks into charges against the common man, is again a great step forward. The use of CBI for the purpose is, therefore, unexceptionable.

Of course, certain safeguards will have to be provided for in doing so. This is why the Supreme Court has said that in the P.F. scam investigation, while former Judges will be treated on a par with any ordinary citizen, the courts permission will have to be obtained for questioning sitting Judges. This again stands to reason, of course, until such time as the evidence of guilt of the suspects becomes more than plausible if not conclusive.

I am personally pleased that an agency that I presided over nearly a decade ago has been chosen to investigate the P.F. scam. It is a recognition of its credibility and professional excellence. This is no ordinary case. It is one that has stakes for the future in the area of public service integrity.

Hence, the CBI investigation will have to be handled with great care and entrusted to officers with proven ability and integrity. The Director has his task cut out for him. Even at the risk of digressing, the fact that such a sensitive investigation has been given to the CBI should impress on the higher echelons of the government the need to insulate scrupulously that organisation from political manipulations.

The requirement especially to staff the higher ranks of the CBI with men of the highest integrity and political objectivity cannot be overemphasised. What is even more necessary is to ensure that the working conditions of CBI officers at the lower levels are vastly improved. Not many would know that they are a demoralised lot.

All this arises from the fact that the CBI is treated like any ordinary police agency that can uncomplainingly deliver the goods even under the most trying conditions.

There is one major issue that baffles many close observers of the judiciary. It is one of how to reduce opportunities for graft in the judiciary. The P.F. scam is one example of the lack of controls that enabled several in the system to abuse it. Obviously, we need to build robust internal safeguards that will not permit such misconduct.

Computerisation has brought a modicum of relief to the citizen who seeks services from the government. In several States, this has streamlined the process of issuance of documents such as birth certificates, without the citizen having to pay a bribe. The easy availability of train tickets, which was once a corruption-ridden process, again came about following computerisation.

The higher judiciary has taken substantial advantage of this, but not so those at the bottom. If we can take computerisation to the grassroots of the judiciary, there is reasonable hope that things will improve vastly. From my little knowledge of computerisation in major government departments, this is not impractical. It may be expensive, but is achievable.

Having said all this, it is not prudent to stop with punishing corruption. How does one promote and reward honesty in the judiciary? The problem is gravest in the lower judiciary. Magistrates and judges in the subordinate courts work in appalling conditions in most of the places. In this they are not very different from policemen whose working environment can shock many of us for its squalor.

The apex court and the High Courts have won many concessions from governments but the huge numbers involved have made further improvements difficult if not impossible. But any helplessness is wholly unacceptable, if we want greater judicial integrity and accountability.

More courts to tackle the huge workload, better premises to provide a hygienic work ambience and higher salaries are part of an integrated system needed to upgrade the quality of the judiciary.

The Centres near extravagance towards its employees in accepting the Sixth Pay Commissions recommendations will have to be matched by State governments. There is a ray of hope that this will enhance the morale of important segments such as the police and the subordinate judiciary in the States, and contribute to their spurning illegal gratification.

Any marked change here could come about in about a decade or longer, definitely not earlier. It is worth waiting for this to happen as long as we set off the reform process straightaway.

A word finally about the appointment of judges, the most contentious aspect of the judiciary that is often debated without conclusion. The buzz word is transparency, whatever that means. The popular belief is that the process is shrouded in some avoidable lack of openness.

In the context of the recent complaints against some, the fundamental question is whether more transparency can ensure fewer dishonest judges. I doubt it. It is known that before finalising names for appointment to a High Court, some Chief Justices of India have engaged in as wide a process of consultation as possible. This should be the norm for every Chief Justice.

Also, the Intelligence Bureau (I.B.) does some field verification. All these procedures are not error-free, nor are they wholly objective. We are a country plagued by sectarian considerations.

Hence the suggestion that the names of prospective candidates be widely publicised, so that no relevant adverse information on a nominee gets concealed, is highly suspect. Excessive publicity to names of those shortlisted could invite a flood of frivolous accusations just to scuttle an appointment on grounds other than merit.

A process that will be acceptable to all parties involved is still elusive. It may never be arrived at. In the final analysis, it is the finer elements among those responsible for crucial decisions that will have to prevail if we are to have a widely respected judiciary. Justice Balakrishnans recent actions do offer us hope for the future.

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