Why in the news?
- Recently, an FIR was filed against a retired judge of the Orissa High Court over allegations of bribery to settle a medical college recognition case in the Supreme Court.
- The FIR was filed in the Prasad Education Trust Case headed by Chief Justice of India Deepak Misra.
- The petitioner demanded that CJI stay away from taking any judicial or administrative decision.
- This led to extraordinary accusations of misconduct against India’s most senior judge and corruption in judiciary.
What is Judicial Corruption?
- Corruption is a form of dishonest or unethical conduct by a person entrusted with a position of authority, often to acquire personal benefit.
- Corruption may include many activities including bribery and embezzlement.
- Judicial corruption is inimical to judicial independence and to the constitutionally desired social order.
Definition of Corruption according to the Prevention of Corruption Act:
The Prevention of Corruption Act 1988:
- The Prevention of Corruption Act 1988 is an Act of the Parliament of India enacted to combat corruption in government agencies and public sector businesses in India.
- This law defines who a public servant is and punishes public servants involved in corruption or bribery.”
- It also punishes anyone who helps him or her commit the crime corruption or bribery.
What crimes are punished by this law?
- When a public servant accepts money or gifts over and above their salary, in return for favoring a person in their official duty.
- When a public servant accepts gifts from a person with whom they have a business or official relationship without paying them.
- When a public servant is guilty of criminal misconduct such as regularly accepting bribes to favor people during their official duty.
- If any person accepts money or gifts in return for influencing the public servant by using his personal connection or through illegal or corrupt methods, this person can also be punished.
- Any person helping the public servant commit these crimes can also be punished
It also punishes anyone who helps him or her commit the crime corruption or bribery.
Reasons for Judicial Corruption in India:
- Judicial Corruption exists because public trials are almost never heard by the public.
- Lack of accountability breeds corruption.
- Judicial accountability is as important as accountability of the executiveor legislature.
- Judicial accountability promotes at least three discrete values: the rule of law, public confidence in the judiciary, and institutional responsibility.
- The regular evaluation of judicial performanceis a springboard for ensuring greater judicial accountability, but unfortunately India do not have any institutional mechanism yet to do this.
- Judges become corrupt when they enjoy absolute power and their strong personal agendas dominates over merit of the case.
- Corruption in lower courts: India’s judicial corruption is a cancer that begins at the lower levels and inches its way up.
- According to the Global Corruption Report 2007, the perception of corruption is higher in India and Pakistan in comparison to Hong Kong, Malaysia, Singapore and Thailand. In Pakistan, 55 per cent of the respondents said the judiciary was corrupt.
- A Transparency International report released in 2007 showed that 77 % per cent of respondents in a survey in India believe the judiciary is corrupt.
Corruption in higher courts:
- India’s higher court judges are selected from lower court judges and lawyers; there is always a possibility of corrupt judges making it to higher courts.
- Judges at the highest level use their “contempt of court” power to suppress allegations of corruption.
- Cumbersome impeachment proceedings.
- No judge has so far been impeached, in spite of serious charges of misconduct or corruption has been raised against some judges.
- The lengthy and cumbersome impeachment provision is, thus, not an effective toolto ensure judicial accountability.
- Since independence, only three judges have ever faced impeachment for misappropriating public funds.
- The Judges Inquiry Billincluded willful and persistent failure to perform duties within the definition of ‘misconduct’.
- Apart from impeachment, there is nomechanism to make judges accountable or evaluate their performance
- India has the world’s largest backlog of cases.
- For 1.7 billion people in India, there are 31 judges in the SC and 1,079 in high courts.
- There are never more than 600 judges in the High Court appointed at any point.
- As of April 2017, there were 430 posts of judges and additional judges lying vacant in high courts, and 5,000 posts vacant at the district level and lower.
- For 2017-18, the Union budget allocated a meagre Rs 1,744 crore to the judiciary — about 0.4 per cent of the total budget.
- Indian judiciary is facing institutional crisis on account of the most ferocious attack ever on the judiciary by the executive.
- Nepotism in judicial appointment is also one of the reason for corruption in judiciary.
The legal framework to curb corruption:
Indian Penal Code (IPC):
- Various sections of the Indian Penal Code (IPC) provide criminal punishment for public servants who disobey relevant laws or procedures, frame incorrect or improper documents, unlawfully engage in trade, or abuse their position or discretion.
The Prevention of Money Laundering Act:
- The Prevention of Money Laundering Act, 2002 seeks to prevent money laundering including laundering of property through corruption and provides for confiscation of such a property.
- It mainly targets banks, financial institutions and intermediaries such stock market intermediaries.
Right to Information (RTI) Act:
- The Right to Information (RTI), 2005 Act represents one of the country’s most critical achievements in the fight against corruption.
- Under the provisions of the Act, any citizen may request information from a public authority which is required to reply within 30 days.
- The Act also requires every public authority to computerize its records for wide dissemination and to proactively publish certain categories of information for easy citizen access.
- This act provides citizens with a mechanism to control public spending.
The Institutional Framework to curb corruption
- There are various bodies in place for implementing anti-corruption policies and raising awareness on corruption issues.
- At the federal level, key institutions include the Supreme Court, the Central Vigilance Commission (CVC),the Central Bureau of Investigation (CBI), the Office of the Controller & Auditor General (C&AG), and the Chief Information Commission (CIC).
- At the State level, there are local anti-corruption bureaus such as the Anti-corruption Bureau of Maharashtra.
Failure to curb corruption:
Failure to enforce laws:
- India lacks by poor enforcement of laws, even where the laws are good.
- Data analysed by the Commonwealth Human Rights Initiative (CHRI) shows that between 2001 and 2015 the government’s National Crime Records Bureau (NCRB) documented the registration of 91 million offences across the country, punishable under the Indian Penal Code and various special laws.
Inefficiency of institutional frameworks:
- The institutional anti-corruption framework generally suffers from a lack of coordination, and overlapping and conflicting mandates between institutions addressing corruption.
- Key institutions often lack the staff and resources to fulfill their principles adequately and struggle to protect themselves from political interference.
- Influential politicians and senior officials are rarely convicted for corruption, eroding public confidence in the political will to effectively tackle corruption.
Thievery and Bribery:
- Thievery is common in real estate.
- It is common for a property developer to flout regulation through bribery.
- This indicate severe lack of public confidence in the ability of the anti-corruption agencies to probe a complaint of corruption, collect evidence and put the case up for trial.
- Bribery and Thievery are only two forms of corruption. The PCA recognizes various offences as corruption.
Limitations for the Whistle Blowers:
In 2015, the government had introduced a bill in the parliament to amend the 2011 act.
The key criticisms of this bill are as follows:
- Whistleblowers should not be allowed to reveal any documents classified under the Official Secrets Act of 1923, even if the purpose is to disclose acts of corruption, misuse of power or criminal activities.
- It also puts a restriction on disclosure of any information that could prejudicially affect the interest of sovereignty and integrity of India and good relations with foreign State.
- The bill puts bars on the activity of whistle blowing in such a way that only some information obtained through RTI etc. has been kept in its ambit.
- The bill says that the whistleblowers would be entitled to official protection only if these conditions are met; and they could face action if they are not.
- The amendment Bill seeks to remove immunity provided to whistle-blowers from prosecution under the draconian Official Secrets Act (OSA) for disclosures made under the Whistleblower Protection law.
- Improvements to contempt of court and impeachment proceedings.
- Improvement in judicial infrastructure.
- Enforcing integrity codes of judges and lawyers
- Extending the Right to Information Act to cover the judiciary.
- Opening judicial vacancies to qualified legal scholars.
- Using alternative dispute resolution mechanisms.
- Use of modern technology.
- A review of how court records are handled and the introduction of modern tracking methods can eliminate much of petty corruption existing in lower courts
- Websites and CDs can explain basic law to laymen
- Court files can be computerized
- Video recordings of court proceedings should be maintained
- There is urgent need of judicial reforms and justice delivery system. Time bound disposal of cases and disputes.
- In order to reduce the pendency of cases, the Government is in the process of draftingNational Litigation Policy.
- The Government has also suggested audio-video recording of court proceedingswhich is meant to bring transparency in the justice delivery system and accountability in conduct of judges who allow too many adjournments.
- Protection of whistleblowers: Effective protection of whistleblowers will support an open enterprise culture where employees not only have confidence in reporting but also aware of the reporting procedures.
- It will provide less opportunity for malfeasance and abuse.
- The need is to bring CJI under RTI.
- Judiciary needs to ensure Open Court System and make judgment audible.
- Curbing political interference in judicial appointments.
- The steps like Lok Adalat, e-court, digitalization of courts, National Crime and Criminal Records, e-records of courts cases and coordination among courts using big data etc can be useful.
- Educating ethical and moral values: The country needs to develop a sense of moral character in citizens, starting with the family, and all other institutions in society.
- Remove nepotism in judicial appointment.
- Judges must be subject to judicial review.
- Judges must follow a code of conduct.
- Bar associations must act against corrupt members.
- A public body must keep an eye on the judicial system.
- An Indian judicial service must be created.
- The proposed National Judicial Commission should have powers to remove judges.
- Judges should declare their assets and those of their family.
- Reduce the gap
- Provide alternative methods of dispute redressal to lighten burden on courts.
- Increase number of judicial officers and number of fast track courts.
- Create a vigilance cell for redressal of public grievances.
- The Supreme Court has evolved the collegium system.
- The collegium system has ensured theindependence of the judiciary.
- It provides keeping the final power of appointmentin the hands of the CJI and a collegium consisting of senior judges.
- The collegiums system has come under lots of criticism on the grounds that it lacks objectivity and impartiality.
- As a solution, the executive sought to bring in the National Judicial Appointments Commission (NJAC), which the Supreme Court has struck down.
National Judicial Appointment Commission (NJAC):
- In 2014, the Parliament passed the National Judicial Appointments Commission Actand the 99th Constitution Amendment Act.
- The Commission is composed of the CJI, two senior-most judges of the Supreme Court, the Law Minister andtwo eminent persons, to be selected by a selection committee consisting of the Prime Minister, the CJI, Leader of the Opposition in the Lok Sabha or where no leader of Opposition, the leader of the largest single opposition party.
Memorandum of Procedure (MoP):
- The Supreme Court directed the Executive to draft a Memorandum of Procedure ( MoP) on appointment of judges to the High Courts and the Supreme Court, in consultation with the President and the CJI.
Judicial Standards and Accountability Bill, 2010:
- The Bill tries to lay down enforceable standards of conduct of judges.
- It also requires judges to declare details of their and their family member’s assets and liabilities.
- It creates mechanisms to allow any person to complain against judges on grounds of misbehavior or incapacity.
Judicial crisis in India: An overview
Apart from judicial corruption Indian judiciary is also facing following crisis:
- The Supreme Court of India is facing its worst crisis of credibility since the Emergency.
- Strength of judges in courts is lower than required to fill up the seats. This shortage leads to delay in judgment.
- Frequent transfers of judges take the interest out of them to hear the cases that their successor may give judgment to, after the transfer. Such arrears mustn’t exist.
- Vacancies of judiciary aren’t filled up due to unavailability of good judges.
- Fast-track special courts for commercial disputes are established, thus disregarding the poor entirely.
- Appellate courts are falling short in dealing with the cases hence passing the burden to civil and criminal justice system.
- Higher number of holidays, lack of time management is the problem which lies to the base of judiciary.
- Poor dispute resolution mechanism.
- Poor manpower and crumbling infrastructure, coupled with a boom in litigation, made the judiciary underperform.
- Filing of the frequent government litigation keeps the courts busy instead of serving justice to the people speedily.
- Frequent adjournments and indiscriminate use of writ jurisdiction.