The corruption of the judiciary

March 29th

this is original, unpublished content licensed under the creative commons license on the sidebar.

The corruption of the judiciary

Rajeev Srinivasan

All of us have an image of the judiciary as uncorrupt and morally upright. The scintillating performance of Jean-Louis Trintignant as the judge in the Costa-Gavras classic Z, quite possibly the best political film of all time, comes to mind. Then there are the legendary judges of the US Supreme Court, such as Learned Hand and Brandeis, handing out opinions with gravity and dignity. Landmark cases in the last fifty years in the US, such as Roe v. Wade on abortion rights, and Brown v. Board of Education on civil rights, stand out for their imposing authority.

There haven’t been such sensational or precedent-setting cases in India; nor do the names of exceptional judges in India leap to mind. That may simply be because the media do not make stars out of India's judges, who quietly go about their business. The general impression is that India's judges are competent, incorruptible, and honorable.

But recent events call this into question. Is the Indian judiciary becoming a reflection of the society itself? That would be a disaster, because the other pillars of the establishment have shown themselves to be brutal, predatory and dishonest: the executive branch, the legislature, the police, the media and academia. The courts, and the Army, have been seen as the last refuges of decency and honesty in India.

Corruption has become endemic in middle-class India. In most societies the upper classes are manipulative and decadent; the lower classes often unrefined and brutish. It is the middle-class, the bourgeois, that tends to be the honest, if rather boring, segment of society. It appears, alas, that moral corruption has eaten into the soul of the Indian middle-class.

So maybe it is not surprising that the judiciary reflects the same values. I hasten to clarify that this is not a blanket indictment, only some individuals are corrupted. But it is saddening, nevertheless.

There were instances during the Emergency when the Supreme Court did what the government told it to; but it is perhaps unfair to expect the court to not be intimidated by a government that assumes vast punitive and coercive powers.

More recently, there has been a rash of 'commissions' to investigate various things, many of which provide employment for retired judges. The job of a 'commission' supposedly to arrive at the objective truth of the matter, but there is also an alternative dictionary meaning for the word: 'a fee for an agent for services rendered'. Some ‘commissions' do give the impression of being instruments to provide post-facto justification for a conclusion that has been arrived at a priori: hardly something that inspires trust.

The first Commission whose results I looked at askance was the Jain Commission of some time ago, which cast aspersions on the patriotism of Tamils, and didn't really enlighten us all a great deal about the conspiracies behind Rajiv Gandhi's assassination.

The most recent errant Commission is the Banerjee Commission, which has produced with an uncanny sense of timing an interim report on the Godhra incident. It suggests that the incident wherein 59 women and children were burned to death in coach S-6 of the Sabarmati Express on that fateful February day was merely an unfortunate accident, and not caused by malafide intent.

There is quasi-scientific evidence – or at least an urban legend – to support the Banerjee Commission's findings. This is the strange phenomenon known as 'spontaneous human combustion'. A human being, hitherto normal, allegedly starts burning for reasons unknown, and is soon reduced to ashes. Doubtless, there were several simultaneous acts of spontaneous combustion inside coach S-6. Surely, this is an unfortunate accident. Act of God, if you are a believer.

Incidentally that would explain the Best Bakery incident too. There must have been spontaneous combustion of a person there, and the gas cylinders stored in the bakery must have caught fire and incinerated other people. I am sure Justice Banerjee will soon produce an opinion on spontaneous combustion in the Best Bakery case, so that it can be closed as an unfortunate accident, and the nation spared further agony.

The Best Bakery case, regardless of Justice Banerjee's erudite forensic science, is another example of the bizarreness of the Indian judicial system. In any nation other than one that deserves to be called a banana republic, this case would long ago have been declared a mistrial.

Consider the facts: a case that has been tried repeatedly, to accommodate a persistent individual, Teesta Setalvad, who managed to get it moved to a court where she believes she has an advantage. The principal witness, Zahira Sheikh, has reversed herself so many times that it is utterly unclear what the truth is. And Sheikh has claimed intimidation, fraud and forgery by Setalvad, who was up until recently her apparent savior. If proved, witness intimidation is a serious offense, and should automatically lead to a mistrial.

In particular, as of March 29th, Sheikh has petitioned the Supreme Court to probe Setalvad's assets, alleging that the latter's NGO Communalism Combat is actually a profit-making front for her company Sabrang, and is intended to subvert government regulations on the transfer of funds from abroad. Further, Sheikh said that the US had set aside millions of dollars for funding litigation in Gujarat (why, one surely wonders), and that she wanted to "explain to the world at large the exploitation in the name of secularism and protection of Muslims by persons like Setalvad."

Since the principal witness’s testimony has proved unreliable, there are sufficient grounds for declaring a mistrial. In fact, in a fair court system, both Setalvad and Sheikh would be hauled up for contempt of court, and ordered to repay the costs to the State of having spent a lot of time and energy on this obviously improperly handled case.

It is apparent that the Best Bakery case is politically motivated, and that the objective is not quite to arrive at the truth behind what actually happened there. Indeed, in a flagrant breach of judicial propriety, a sitting Chief Justice of the Supreme Court publicly offered his political opinion on the case, which is improper in something that is sub judice.

The whole business of sub judice is handled rather oddly by the Indian media and establishment. If a case is under legal consideration, the judiciary must not opine: that is the law and the custom, lest they influence those involved in the case. That does not mean the common man or the journalist must be silent. On the contrary, they have every right to discuss the publicly known facts, provide opinions, and debate it to death. But in India, nobody outside the court system talks about it ("mustn't invite contempt of court") yet judges feel free to air their opinions.

The actions of the Tamil Nadu High Court in the Kanchi case have not been particularly upstanding. Nor were the media's, and this was highlighted by an opinion in the Andhra High Court, which, not surprisingly, did not get much airplay, except for an article by S. Gurumurthy (“Will the ‘secular’ media heed Justice Reddy’s warning?”, New Indian Express, January 14, 2005). Here was a judge doing what he is supposed to do: provide a powerful opinion on a case that came to his court. But Justice Narasimha Reddy got no kudos for his pains.

In addition, there is a tendency in India to use the Supreme Court to decide on matters in which the court has no technical competency. For instance, why on earth is the Supreme Court supposed to decide on the height of the Narmada Dam at exactly so many meters? The business of the courts is strategic: it is to determine if there is constitutional or legal precedent or reason to allow the dam to be built. The details, the tactics, must necessary be the role of the executive branch.

The argument, of course, is that the executive branch is weak or incapable. But that should be no reason for the court to not lob the ball back into the government's court. With a staggeringly backlogged case load that will take thirty years to clear even if no new cases were filed, the judiciary should firmly refuse to get caught up in executive matters.

Finallly, the Indian Supreme Court is burdened with the pettiest of cases. The US Supreme Court is only called upon to decide the weightiest cases, after due consideration by a series of lower courts and only after the exhaustion of all other avenues. For instance District Judge Colleen Kollar-Kotelly ruled on the Microsoft anti-trust case, a significant trial. District Judge Marilyn Hall Patel in San Francisco too has ruled on some major cases.

Why isn't India’s Supreme Court strictly the apex body? Even trivial cases, for instance certain Public Interest Lawsuits of no merit whatsoever, are routinely brought before it; this is appalling. De minimus cases like the petition by Kuldip Nayar and Praful Bidwai about the ‘human rights’ of Pakistani terrorists shot in Delhi go direct to the Supreme Court. Why?

The Indian judiciary is not quite the fine, upstanding entity we would like it to be; this is unfortunate, as this entity of last resort should be something that the man on the street can always trust to be impartial and just.

Besides, the comparison of contemporary India with the Greece of Z is not out of place: there is a fascist left-wing establishment in India that is, in effect, sabotaging democracy. To quote Judge Learned Hand, “If we are to keep our democracy, there must be one commandment: Thou shalt not ration justice”. Is the Indian judiciary rationing justice only to a chosen few?

Written February 2005, updated March 2005, 1600 words