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Legal Matters | Judicial Accountability Is About Staying Relevant

Brushing complaints about judicial misconduct under the carpet only gives the executive a lever to influence judges, and by extension, judgments

Oct 15, 2020 / 02:01 PM IST
Representative Image

Representative Image

On October 10, the Chief Minister’s Office in Andhra Pradesh publicly released a letter addressed to the Chief Justice of India, making very serious allegations against another judge of the apex court. Without giving more oxygen to the accusations, we can say that the allegations involve influencing the working of the High Court of Andhra Pradesh so as to favour a rival politician, as well as to protect his own children who are named as accused in certain land cases.

This is not the first allegation of corruption against a chief justice-in-waiting. This is, however, possibly the first that has been made by a constitutional functionary in an official capacity. Now it is entirely possible that the letter is motivated by frustration that the Chief Minister’s political machinations have been thwarted by the judiciary. Even then, its response will show the judiciary up for whether the issue will be swept under the carpet, or worse, dealt with by throwing the kitchen sink, a.k.a. treating it as ‘contempt of court’.

The recent past offers scant hope. Take the alleged suicide note by former Arunachal Pradesh Chief Minister Kalikho Pul, alleging soliciting of bribes by the then chief justice as well as his deputy in exchange for a favourable verdict. Or the medical college bribery case, where the CBI unearthed conversations that could possibly indicate the then chief justice’s involvement in cash-for-relief. None of these were meaningfully investigated. The allegations of sexual harassment against Chief Justice Ranjan Gogoi were, on the other hand, investigated. However, the report is still under wraps, and the subsequent events (reinstatement of the complainant) give reason to believe the credibility of the allegations.

The judges of the apex court — perhaps like each of us in our private lives — would like the country to believe their integrity merely because they swore by it. They could well be honest men entitled to the presumption of innocence. However, being in the public life places a higher onus on judges to adhere to a higher threshold of probity — like the oft-invoked Caesar’s wife — they must be above suspicion. When questions are raised about their conduct (and many are raised for ulterior motives), the investigation must be not only be thorough and credible, but the result must also be published.

After all, a judgeship under a cloud is a much reduced version of themselves, perhaps unable to assert their role of holding the government to account on behalf of its citizens.

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A look at how other countries have addressed similar issues is instructive. Perhaps the best example is from Israel, which created an ‘Ombudsman of Israeli Judiciary’ by law in 2002. The ombudsman, usually a retired justice of their Supreme Court, is appointed by the same committee that is charged with appointing judges. The ombudsman investigated complaints pertaining to a judge’s condescension towards a witness who stammered, inappropriate comments by a family court judge and granting of relief without hearing the opposite party — each of which happen worryingly often in Indian courts, and yet, pass without redress — as well as more serious corruption allegations.

In the United Kingdom, the Chief Executive of the Supreme Court is the points-person for receiving complaints. The CEO forwards all eligible complaints to the President of the Court (their equivalent of the Chief Justice) or where the complaint relates to the President, to the next senior-most judge. The President (or the next senior-most member) has, in appropriate circumstances, the power to bring the matter to the notice of the accused judge, and resolve it informally. What is noteworthy, however, is that when the conclusion is to either take no action or to resolve the matter informally, it is mandatory that the reasons for taking such an action is recorded and filed, ensuring accountability.

To be sure, India also has an in-house committee to deal with such complaints. However, the opaqueness with which the committee functions opens it up to charges of a cover-up, as happened in the process instituted to deal with the complaints against Gogoi (even though the committee might have arrived at the correct redressal).

When, on the other hand, the complaint is brushed under the carpet, it doesn’t really go away. It tilts the balance of power to the executive, and ‘this vulnerability is a handy lever for the executive to influence the allocation of critical cases, and thereby, verdicts’. This is exacerbated in present times, where the ruling dispensation also has sufficient numbers to effect an impeachment if an opportunity arose.

Abraham C Mathews is an advocate based in Delhi. Twitter: @ebbruz. Views are personal.
Abraham C Mathews
first published: Oct 15, 2020 02:01 pm

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