Judiciary in India faces unprecedented challenges. Its functioning is under constant scrutiny. The government is set to launch an impeachment proceeding against Justice Verma in whose outhouse burning cash was found. MPs have initiated a move in the Rajya Sabha to impeach a High Court judge. A judge has been transferred for apparently taking bribes for bail. Perhaps in response to all this, the CJI has talked of ethical concerns. And the previous CJI recently talked of the need to earn the public’s trust.
Chief Justice Gavai has said, “If a judge takes up another appointment with the government immediately after retirement, or resigns from the bench to contest elections, it raises significant ethical concerns and invites public scrutiny. The immediately preceding CJI, Sanjiv Khanna, had declared that he would not accept any post-retirement position. He also said, “… the public trust that judiciary has cannot be commanded, but it has to be earned”.
These statements need to be seen in the context of cash being found in Justice Verma’s outhouse. Whether Justice Verma took money or someone planted it to discredit him, the judiciary’s image is dented. Cases of judicial corruption have surfaced from time to time but this was dramatic. Now, the report of the three member committee set up by the CJI to look into the case has become public. Its conclusions are damning but Justice Verma has questioned action against him and called the process unjust.
Distortions
Recently, a Special Judge of Rouse Avenue Court was accused of taking bribes for bail. The judge’s ahlmad acted as the go in between for the bribe taking. While the judge has been transferred, an FIR has been lodged against the ahlmad.
These two cases taken together suggest that money has played a part in judicial verdicts, even though its extent cannot be gauged. This impacts the credibility/fairness of judgments. The losing party in a case usually feels that justice is not done and now with specific cases of judges taking money coming to light, this sense will be reinforced – the losing party would wonder if in their case also other considerations could have prevailed. This is highly damaging to society’s functioning. Would the cases decided by judges who are caught in some illegality be reopened?
In addition to money possibly playing a part, biases have been playing a role. Some recent court pronouncements have been inexplicable. For instance, in spite of Supreme Court reiterating that ‘bail rather than jail’ should be the rule, bail has been delayed/denied in cases pertaining to the minority community or where the opposition party leaders or dissenters are involved.
The threat to communal harmony, has been invoked to harshly treat some from the minority community while lightly letting off some from the majority community. This is contrary to what society needs since it is the former who need greater protection since they are the minority and pose less of a threat.
It is not that opposition politicians have not committed illegality but when only they are prosecuted, the justice system loses credibility. Suspicion grows that investigative agencies are manipulated by the ruling party. Emasculation of the opposition weakens democracy since their capacity to challenge the misuse of power by the ruling party declines.
These two trends in the justice system– role of money power and majoritarianism – have severe social implications.
Corruption
Both these trends are linked to misuse of power and growing illegality. Judiciary is supposed to be the bulwark against them so as to maintain the rule of law. But, can judiciary remain untouched by these two societal trends?
Judicial independence implies that outside regulation is not possible. Only self-regulation via judicial accountability is possible. Judges have to be of impeccable integrity. But, this has been dented by the lure for money in the wake of high stakes cases (political or corporate) and the societal changes brought about by growing consumerism. It is the prevailing socio-politico-economic milieu that underlies growing corruption.
Money and politics have a close nexus since stakes are high. Manipulation of laws is a source of super profits. Regulation, like in the case of the environment, has to be circumvented and that requires subverting the justice system. Business and political interests, big and small, not only manipulate the systems to earn more but also to hold on to these illegitimate gains. In 2018, four of the senior Supreme Court judges held an unprecedented press conference to oppose ongoing manipulations in some critical cases.
The rich and the powerful can manipulate the justice system to either speed up or delay justice depending on their needs. For instance, they can get bail overnight or delay paying tax liability for years. Top lawyers develop a nexus with judges and politicians. Their standing can sway judges and for that they charge insane fees which only the corrupt and the powerful can afford. Most Indian families spend less than Rs.25,000 per month and they can hardly afford to go to the Courts to seek justice.
The nexus between the ruling party, the moneyed and the judiciary influences the appointment of judges thereby creating a judiciary that perpetuates the nexus. Such self-selection prevents independent minded people from becoming judges.
In brief, distortions in the justice system reflect the goings on in the top echelons of society.
Middlemen
Corruption is made safe by the role played by middlemen as the role of the ahlamad in the ‘bribes for bail’ case illustrates.
Lawyers are known to caution their clients that they may win the case if it comes up before a particular judge. This could be either because of the links between judges and lawyers or the known bias of a judge or the existence of potential for manipulation. Two decades back, one of the parties in a case was caught with the draft of the judgment, before it was delivered.
Middlemen ensure stable and safe bribery. They reduce the risk of exposure of the bribe. They can also manage the investigating agencies to weaken the case. Middlemen themselves cannot bleat since that would undermine their business. This provides security to the bribe taker. The bribe giver is also freed of the uncertainty of how much to bribe and how to do it. Finally, there is deniability. The two parties, the bribe giver and the receiver are not directly in touch and the payment by the bribe giver to the middleman can be claimed to be a service charge
Bribe is often called speed money. When work is not done in the routine way, people are forced to pay bribes. But, this is not speeding up. Work is impeded and bribe only enables the work that should have been done to be done. Bribes are also paid to slow down action, like in tax matters.
After 55 Syndrome
Retiring judges getting lucrative post-retirement assignments is often suspected to be the price for pre-retirement judgments favouring the moneyed and the rulers. This is akin to the post 55 syndrome. Close to the time of retirement, bureaucrats grant favours so as to get a good post retirement job which would enable them to live a life of comfort similar to what they enjoyed in service. This seems to also be the case with the judiciary.
Judicial accountability is sought to be enforced by requiring judges to declare their assets. Illegal gratification would show up in disproportionate assets. Post the discovery of cash at Justice Verma’s house, the pressure had increased, so, the SC Judges have declared their assets. Most of them have declared modest amounts of assets. Should this be reassuring?
But, do the corrupt ever declare their illegally acquired wealth? Neither the businessmen, nor the politicians nor the executive do so. They go to great lengths to hide their illegally acquired property via holding it benami, taking it abroad, investing in real estate or businesses or buying jewelry, etc. In household survey’s people declaring low incomes are found to own expensive assets. So, public declaration by itself is meaningless without investigation.
Pending Cases in Courts
Weak accountability of the judiciary has deep social implications. India Justice Report 2025 points to 5 crore pending cases in the courts. ‘Justice delayed is justice denied’. Recently a judge commenting on a case running for 26 years pointed to the emotional toll on the litigants and said that the ‘Justice system must share the blame and responsibility’. He said, ‘Each volume of this court file is filled with yet another application, yet another affidavit …’.
The judicial system, instead of accepting its flaws as the reason for the huge backlog, argues that there is a shortage of judges and courts and their infrastructure. This is self-serving. The real reason is a shortage of judgments. Judges and lawyers cause cases to be delayed by years; famously said, ‘tarik pe tarik’.
For example, cases of cheque bouncing under Section 138 and registered property disputes under Section 12(6) should be speedily resolved but they often drag on for years. If the case was resolved in three months rather than in 3 years or more, there will be 12 times less cases. That would reduce the 5 crore pending cases to around 40 lakh and they can be dealt with by the present strength of judges, courts and infrastructure.
Judicial Accountability
The above mentioned issues would get resolved if judiciary becomes accountable; a big if. If politicians who have to go to the public for elections are as unaccountable as at present, can the judiciary become accountable on its own? The Collegium system was supposed to eliminate political influence in selection of judges. But if judges are themselves not free from biases, the problem would persist. Government claims that they do not agree to promotion or transfer of certain judges due to the adverse report by the IB. But then should such judges at all continue? And, should not they face prosecution? Ram Jethmalani once said, if 25% of the judges are corrupt and they select the judges, at least 50% of them would be corrupt.
Various reforms are suggested. Like, ‘contempt of court’ should be used sparingly. The nexus between money and politics via the ubiquitous black economy needs to be addressed. Cost of litigation needs to be reasonable. Law needs to be simplified to enable everyone to access it. Cases should be time bound, etc.. But the vested interests in society do not want this since democratization will reduce their power over the system and their capacity to manipulate it for their narrow ends.
In brief, if the black economy, perpetuated by the ruling elite and which undermines not only the judiciary but all other institutions persists, well-meaning reforms will remain on paper.
PN: This article first appeared in Mainstream Weekly
