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An estimated 18-minute read

Weed out corruption within a section of our higher judiciary!

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The following is a text of my representation sent to the Hon'ble Prime Minister of India and to every member of the Parliament of India (790 members). The Central Government should act now to weed out corruption within a section of our higher judiciary. And, the Parliament should act urgently and bring about a law to force electronic recording of all Court proceedings in our country. It has been widely shared already and do share it with your elected or regional representative in the Parliament - to force meaningful action from those that have a public duty to intervene here.  A scan is here.

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Date: 16-Nov-2017

To

The Hon’ble Prime Minister 

Sri Narendra Modi 

Government of India 

New Delhi                                                                       

Copy to:

Hon’ble Members of the Lok Sabha and the Rajya Sabha.

Sub: A dire need to clamp down on corruption within a section of the higher judiciary and an urgent legislative need to introduce electronic recording in Court proceedings.

Respected Sir / Madam

My name is K.V.Dhananjay. I am an advocate in practice and based in Bangalore. My practice extends to the Hon’ble Supreme Court of India.

I have also spent a substantial amount of time over the past several years in a study of the judgments of the Supreme Court. To start with, I studied all of the judgments delivered in the year 2014 and concluded that less than 7% of those judgments had involved a question of law upon the Constitution of India. Preliminary findings from other ongoing studies point to depressing statistics and data  - survey on the time between the original lis-event and a final judgment from the Supreme Court; judgments that were unnecessary in light of past precedent and unrecognised confusion brought about by conflicting judgments. Finally, of the threat to a cohesive jurisprudence due to a lack of collaboration between Benches while issuing a judgment – a scenario that looks like having a dozen Supreme Courts for one country. I have authored several articles about a few aspects of the Supreme Court jurisprudence. I have been publicly campaigning for the introduction of electronic – audio and video – recording of Court proceedings in India for the past nine years.

I am confident that you are fully aware of the controversy surrounding the petitions alleging judicial corruption in the Supreme Court  - Writ Petitions that were filed by CJAR [Campaign For Judicial Accountability and Reforms v. Union of India And Anr – Writ Petition (Crl) No.169 of 2017] and Smt.Kamini Jaiswal [Kamini Jaiswal v. Union of India And Anr. – Writ Petition (Crl) No.176 of 2017]. I am not connected to these two cases or the counsel in these cases. I write here on my own and for myself. And, I have no manner of connection or personal communication with any judge of the Supreme Court, whether directly or indirectly.

To begin with, one must read the preface dated 19-Sep-2017 issued by the Central Bureau of Investigation (‘CBI’) to its First Information Report (‘FIR’). This CBI-FIR has already led to the arrest of five individuals including a retired judge of the Orissa High Court, Sri I.M.Quddusi. The preface to this FIR is clear and unambiguous - one or more judges of the Supreme Court are now persons of interest to this FIR. And, the CBI is statutorily entitled to investigate these judges – if it reaches an honest, objective and evidence-based satisfaction on the need for such an investigation.

A judge of the Supreme Court, like any other subject governed by the Criminal Procedure Code, 1973 could become the subject of a criminal investigation without being named in the FIR if persons that are already being investigated provide lead or evidence that could be examined and accumulated without a direct investigation or confrontation of that judge. The later process of formally arraying such a judge as an accused in the FIR or ‘Police Report’ to subject his person or property to investigation or prosecution is of course, subject to the extra-statutory clearance from the Chief Justice of India (or other Judges of the Supreme Court in respect of investigating or prosecuting the Chief Justice of India). Hence, an FIR in such cases cannot be treated as less of a hindrance in disqualifying judges probed by that FIR from exercising listing or hearing power merely because the FIR hasn’t named them specifically. Such an impediment is complete even without actual naming in the FIR – as is the case at present. To repeat, the preface to the CBI-FIR shows that judicial corruption is its essence. Specifically, the supposed judicial corruption in the medical college admissions matter.

However, the Supreme Court judgments cited in the preface to the CBI-FIR and other Orders in the medical college admissions matters do not indicate any corruption at the Supreme Court. And, I cannot believe that one or more judges of the Supreme Court hearing the medical college admissions cases were the intended beneficiary of the corruption that is described in this CBI-FIR. However, another person may choose to believe the CBI-FIR and I would have no basis to object to such an impression – considering the fact that the CBI investigation in this case has progressed from one lead to another and has already led to the arrest of five individuals, one of whom is a retired judge of the Orissa High Court.

My faith in the integrity of our judicial institutions does not inhibit another person or the general public from holding a different public perception in this case in light of much advancement in the CBI investigation. In matters such as these, impressions matter far more than any objective fact. And, the need for the judiciary to vindicate its reputation in such challenging times has more to do with the ordinary public that would be prone to assume the worst and less to do with people that may hold an unshakeable faith in the judiciary.

This CBI-FIR is now wide public knowledge. The Supreme Court dismissed one of the aforesaid Writ Petitions in the past week, and the other one will be heard shortly. The proceedings at the Supreme Court over the past two weeks have the potential to do lasting damage to the faith of the public in our judicial institutions.

One must read these two petitions. They are an effort by people who care about the public perception of our judiciary. In dismissing the petition by Smt.Kamini Jaiswal, the Supreme Court has wrongly attributed to these petitions, the damage from the CBI-FIR instead of assigning whatever damage to the CBI-FIR itself.

A person deeply concerned with the significance of our judicial institutions may inwardly disbelieve a public allegation against a judge of the Supreme Court. He may present a petition to the Supreme Court stating that the public impression of a judge of the Supreme Court being involved in wrongdoing must be dealt with by the Supreme Court in a manner as to secure an impartial probe into such wrongdoing. A petition of such a nature would not damage our judicial institutions as was feared by our Supreme Court. Instead, it is the manner of how the Supreme Court deals with such petitions that would determine whether its image would remain intact in the eye of the public. And, an averment in such a petition that makes a leap in thought and says that a particular judge is already the subject of investigation and so, requests that judge not to hear that matter or to be involved in any manner in its adjudication cannot be contempt of Court. Not unless the concept of contempt is lifted straight out of medieval times. Such an averment must count as standard operating procedure. A leap in thought to simulate what the ordinary public would think and say and to say that much in a petition to the Court is the standard operating procedure for legal professionals in such work.

Also, the Order passed on 9-Nov-2017 by the Bench comprising Hon’ble Justices J.Chelameswar and Abdul Nazeer could not have possibly been very different, in the hands of a different Bench in Court No.2. All things considered, what was said and done in that Order was the right thing to do, under those circumstances.

A Chief Justice is undoubtedly, a master of the Rolls and the Roster. However, the listing-question before Justice Chelameswar’s Bench was a very different one - when a Court is comprised of several Benches and a matter involving a public allegation that some would construe as an allegation against the Chief Justice himself is filed before the Registry (as had happened here), would the Chief Justice still be a ‘Master of the Rolls and the Roster’ as far as that particular matter is concerned? The answer must be in the negative.

When a listing aberration happens or is contrived as did happen this time, one would have expected the later Supreme Court Bench that dismissed Smt.Kamini Jaiswal’s petition to first ponder over what prejudice was caused to whom by the order passed by the Bench led by Justice Chelameswar. The power of the Chief Justice to be the Master of the Rolls and the Roster does not stem from any divine right to treat it is as an unshakeable part of our law under all and every circumstance. Under these exceptional circumstances, it was only fair and proper that a five-Judge Bench – the five senior-most judges of the Supreme Court, a factor that does not involve discriminatory selection - was convened by the Bench of Justice Chelameswar to hear Smt.Kamini Jaiswal’s Writ Petition. The later disapproval of this arrangement by a five-Judge Bench is bound to shake the public confidence in the judicial administration of our country.

Though, in the interest of an orderly assignment of cases, the power to determine whether a matter of such a nature is before the Registry must vest with the Chief Justice himself, it is not unthinkable for circumstances to arise where the next senior-most Bench is requested to determine if there indeed is such a matter before the Registry. That determination itself provides a limited power to that senior-most Bench to deal with that matter as it deems fit – instead of describing in the Order, the allegation arising from the police investigation, writing down an expectation that the Bench that would hear the case neither comprises the Chief Justice nor is set up by him and directing the Registry to place the Order before the Chief Justice. If the Bench led by Justice Chelameswar had done these things in its 9-Nov-2017 Order, nobody could have legally faulted it. But, massive damage would have been done to the institution. However, that averting of damage didn’t last long owing to the developments in the following days leading to the dismissal of Smt.Kamini Jaiswal’s petition. The damage was bound to happen upon abandoning the subtlety seen in the Order passed by the Bench led by Justice Chelameswar.

As said earlier, impressions matter far more than any objective fact at times like these. The test of the legitimacy of such an impression is the same standard that we employ in the civil law of defamation – the perception of an ordinary and reasonable person. An ordinary and reasonable person that reads the CBI-FIR is more likely to make a leap and say that a few judges of the Supreme Court were about to or have indulged in corruption; is far less likely to not impute any corrupt motive to the medical college proceedings at the Supreme Court. The lay public would never look into the judgments in the medical college admissions matter and would never discover for itself that the CBI-FIR was puzzling because there simply was no indication of any corruption whatsoever in those judgments of the Supreme Court.

We often want a greater public faith in our judicial institutions. Such a public faith is the faith in the mind of an ordinary person; not just the faith in the mind of the smaller population of lawyers or judicial personnel. The mind of a lay person is more easily discovered today than ever before, thanks to the social media. The development in the last two weeks has led to a crisis of confidence in the Supreme Court among the general public that is active on social media – the very segment that is increasingly implicated around the world in shaping broader public opinion, governmental policies, domestic regulation, international conflicts and of course, in sinister plots such as citizen rebellion and disturbances. This public faith has already taken a sure beating this time, and there is an urgent legislative need to do several things to address it.

I must also say that something is quite amiss in this whole episode. Though the CBI-FIR is deeply damaging to the public faith in the integrity of our higher judiciary, this damage is very unjustified because the relevant Supreme Court judgments have done no favour to the offending medical colleges. It is mysterious that routine Supreme Court orders that would not raise any suspicion fell into the radar of the CBI somehow, arrests were made of several persons including a retired judge of a High Court, and admissions were extracted by the CBI. The public is either being misled and made to doubt the Supreme Court unnecessarily, or the CBI has something damaging about a few Supreme Court judges and has expressed its progress in the form of its preface to the FIR.

On a separate note, there is corruption within a section of the higher judiciary – several High Courts and the Supreme Court. There is an urgent need for the Central Government to clamp down on corruption within this section of the higher judiciary. I write here to remind the Hon’ble Prime Minister of India of his duty to the public to expose and punish corruption within a section of our higher judiciary.

And, our higher judiciary prefers to live in a make-believe world of its own creation, in assuming that the public somehow has an unshakeable faith in it. Nothing could be farther from the truth. India consistently ranks very high in corruption rankings, and its judiciary plays a significant role in this deterioration. It is sociologically incoherent to picture a judiciary that is immune to corruption in a society wrecked with endemic corruption – it would be a social anomaly in the short-term and would simply dissolve in the long term. It is proper for the public to say that the judiciary must be as much prone to corruption as the other branches of our Government. It is not a contempt of Court to generalise and say that some members of our judiciary are corrupt – just as much as it is not contempt of the legislature or a crime to say that some members of our lawmakers, bureaucrats or police are also corrupt. It is simply absurd for the judiciary in India to demand a high estimation in the eye of the public given the rampant corruption in other walks of Indian life. Corruption in the eye of the public isn’t necessarily, the narrow form of corruption described in the ‘Prevention of Corruption Act, 1988’. Whenever the public readily witnesses blatant bribery or other forms of governmental corruption, it is reasonable for them also to claim that the Courts that should have enforced the deterrent laws rigorously are themselves corrupt. Or, inefficient, and still, corrupt. The public equates an institution that does little to check corruption with full knowledge of its prevalence as also corrupt – by design or neglect and hence, perpetuating corruption. The judiciary in India cannot demand the public to do away with such an ordinary leap of logic. And, the fact that it might exercise power sometimes to give effect to such a non-existent right to it would be readily seen by the public as more evidence of corruption within it.

India is one of the few major democracies of the world to let their judges avoid public gaze and thereby, lower the trust in the mind of the public about the judiciary – by shunning audio and video recording of Court proceedings. The world knows that electronic recording of Court proceeding brings about a dramatic reduction in judicial corruption while also escalating judicial efficiency. The fact that our higher judiciary has consistently shunned electronic recording of their proceedings must make a reasonable person assume that the higher judiciary in India is firmly rooted in a medieval mindset and is averse to cleansing judicial corruption. Such a tendency should never have been allowed to strengthen over the past decades. The Parliament of India and the Central Government had a public duty to force the judiciary to adopt electronic recording with a view to minimise judicial corruption and to improve judicial efficiency – long ago. However, it is never too late to reform, and electronic recording of our Courts should be imposed through law without any further delay by our Parliament.

Finally, I felt that I must say a few things about a rational perception of the judiciary in a republican form of a democracy governed by the rule of law. Our legal jurisprudence never claims that a judgment of a Court is correctly given. In fact, our legal jurisprudence cannot even say so – given the multitude and hierarchy of Courts and the continuing evolution of our jurisprudence. One cannot say that Courts are presumed to decide correctly unless one regresses to a remote medieval model of just one Court and one judge in it – the notion of a medieval King who did no wrong but who turned into a misfit and practically disappeared in the modern era. Instead, what our jurisprudence says is that a decision of a Court is binding on those it involves. A judgment could be terribly foolish, absurd, mindless or erroneous. Still, a judgment must be respected not because it is taken to be correct; but because it is taken to be binding. And, judges are to be respected not because they have decided correctly but as a mark of gratitude to their continuing endeavour to instill a sense of justice and fairness in the community – through continuous learning, by making sacrifices and drastically limiting their involvement socially in order to remain neutral and impartial to those that come before it, and by cultivating enough moral courage and character to fearlessly discriminate between public good and evil . In a very real and practical sense, Courts are no more than arbitrators in the long term.

Unfortunately, too much of public misconception and ignorance are built around the notion of the judiciary in India. This misconception might also be responsible for the Supreme Court itself usurping the power to make judicial appointments to the High Courts and the Supreme Court – to discharge a moral responsibility to escape bad appointments by the Government of the day. However, whatever raises the fear of bad appointments by the Government of the day in the mind of our Supreme Court must also apply to bad appointments by the judges themselves. A more elaborate reasoning in the past judgements that wrested the power of judicial appointments from the executive would have also nullified the conclusion in those judgments by completing the loop in thought and bringing back the judgment to a full circle; those judgments could only live until the reasoning therein is truncated and abruptly halted. It is unfortunate on the part of our Supreme Court to have evolved such a strange jurisprudence around self-appointment of judges to the higher judiciary.

If this country is prone to fail because its people haven’t evolved sociologically, the Supreme Court or any other Court would not be able to prevent such failure by simply dishing out grand judgments creating an illusion of a stable nation and administration. It is a great failure of our Supreme Court that it does not even recognise that it is prone to commit the same error that threatened the very survival of the unelected and unaccountable monarchs of the medieval ages – an extinct tribe today.

Bad judge appointments by the Government of the day could be greatly countered by a judiciary that is open to the public eye and electronically records its judicial proceedings. And, if societal degradation is so severe that the public would only impulsively elect unscrupulous men into office and if those unscrupulous men would only appoint unscrupulous judges into office, the solution cannot be found by a few good judges usurping the power to appoint themselves and other judges. Such an arrangement would be just as unstable as a palace coup – in the face of a rebellious executive. The judges of our country have no power or means of correcting societal degradation and, in a background of continuing societal degradation, might deteriorate the judiciary themselves unless brought to check. That check must come in the form of the Central Government clamping down on the corruption within a section of our higher judiciary and by the Parliament legislatively mandating electronic recording of Court proceedings. I request as much.

The administration in India is intertwined with the quality of our judiciary. From the days of the Regulating Act of 1773 passed by the British Parliament that established a Supreme Court at Bengal to the current day, Courts occupy a great role in the quality of administration perceived by the populace. When judges turn corrupt as is the case with a section of our higher judiciary, the administration too suffers in myriad ways, and the public cannot, but perceive both administration and judiciary negatively.

There are also, great men within our higher judiciary who would be able to influence their peers positively if they are publicly recognised – through administrative weeding out of the few corrupt judges within the higher judiciary and by legislatively throwing open our Court proceedings to electronic recording.

Sincerely

K.V.Dhananjay

Advocate

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