individual actors in the system, whose integrity is impeccable,
are helpless to stem the rot. Positive power to promote
public good is severely restricted by structural rigidities,
and negative power to plunder and loot is virtually unchecked.
This imbalance in the exercise of power is at the heart
of our institutional crisis.
of law and self-correcting institutional mechanisms are
critical to establish a level playing field in which competition
and market economy can thrive. In the absence of rule of
law, we create the wrong kind of incentives, and both society
and economy suffer. Therefore, in some ways judicial corruption
is far more dangerous than plunder elsewhere. If warrants
of arrest against anyone could be bought for a price, we
can well imagine the depths of depravity into which our
state institutions have sunk.
judiciary has been a beacon of hope and conscience-keeper
of the nation for long. The Constitution lays a great emphasis
on the independence and impartiality of the judiciary. We
must now convert this challenge into an opportunity and
restore integrity and competence in the justice system.
there are simple and practical responses to this crisis.
And many answers come from the best practices adopted by
the judiciary itself. For instance, the Bombay High Court
removed about 150 judges in subordinate courts on grounds
of corruption over the past few years. Corrupt judges and
senior officials are known to most knowledgeable citizens,
media and honest superior officers. However, all choose
to remain silent as the system is rigged in favour of the
corrupt. Bombay High Court has broken this vicious cycle
by practical steps. The High Court under Article 235 of
the Constitution,has the powers of administrative supervision
and control over subordinate courts. Usually, the High Court's
decisions on disciplinary matters are final. Often, such
power has become the source of patronage and petty tyranny.
Bombay High Court simply exercised its powers wisely.
corrupt judges were identified on the basis of personal
knowledge, reputation, complaints from the Bar and glaring
inconsistencies in judgments. They were summoned and given
an opportunity to retire quietly, or face disciplinary action
and dismissal with consequent denial of retirement benefits
and right to practice as advocates. Most chose to quit quietly.
A few who resisted were dismissed. The Supreme Court upheld
the High Court's actions on appeal. Later, the High Courts
in Rajasthan and West Bengal acted similarly, and weeded
out dozens of judges. The Apex Court again upheld these
Gujarat incident must spur all High Courts into energetic
action. In many High Courts, groupism and caste rivalries
are enervating the higher judiciary. The Supreme Court must
recognize that the malaise is not limited to one corrupt
judge exposed, and direct all High Courts to act in a similar
manner to weed out corruption in subordinate judiciary.
Institutional checks could be evolved to guard against arbitrariness
and injustice. If High Courts in Maharashtra, Rajasthan
and West Bengal could act, others can act to cleanse judiciary
more steps need to be taken to promote integrity, impartiality
and competence in judiciary at all levels. The High Court
judges now are drawn from either the Bar or subordinate
judiciary. The competence of higher judiciary is severely
eroded. We need to create an Indian Judicial Service (IJS)
and recruit judges through a nation-wide competitive examination.
Perhaps the one all-India service which is necessary and
justified is the IJS. The Parliament should act quickly
under Article 312 to create IJS. The IJS officials could
form the backbone of the subordinate judiciary at the level
of District Judges. Most of the High Court judges can then
be drawn from this cadre of competent District Judges. The
competence of judiciary will dramatically improve with the
brightest youngsters competing to be judges in an all-India
need to take effective steps to ensure rigorous and impartial
scrutiny before recruitment into higher judiciary, and removal
of corrupt judges. Far too many judges in higher courts
are of indifferent calibre and competence. And the failure
of Justice Ramaswamy's impeachment amply demonstrated that
the Parliament cannot summon the will to remove a tainted
judge with two-thirds support. The proposed National Judicial
Commission (NJC) should have the powers not only to recommend
appointments, but to remove judges in higher courts. The
composition of NJC needs to be improved, and the majority
must be drawn from outside the judiciary. But whatever be
its composition, NJC must have final authority in determining
not only appointments, but removals also. Article 124 of
the Constitution needs to be amended to this effect.
economic reform process is promoting competition and reducing
corruption by closing avenues of discretion abundantly available
in the license-permit-quota raj. But as the incentive structure
in our state institutions still remains perverted, corruption
is now growing in other, far more critical areas of state
functioning. The Telgi stamp scam, the organized leakage
of CAT and other question papers, the brutal murder of Satyendra
Kumar Dubey, the continuing corruption in revenue departments
of the Union and states, and the growing corruption in sovereign
areas of state functioning like police and judiciary are
all manifestations of this dangerous shift of corruption.
Comprehensive political and governance reforms alone will
address this deep-rooted malaise.
Ahmedabad expose must not be taken as an aberration. It
is a symptom of a deep-rooted malaise. Judicial rectitude
and effectiveness are vital for our democracy. Speedy and
impartial justice is the cornerstone of our economy and
society. This sordid episode must serve as a wake up call
to strengthen and cleanse our judiciary. The ball is now
with the Supreme Court and Parliament.