The superior courts in India have emerged as perhaps the most powerful courts in the world, exercising
virtually imperial and unchecked powers

The framers of the Indian Constitution would not have imagined that within 50 years of doing so the Indian judiciary would emerge as the most powerful institution of the state. The Constitution established the high courts and the Supreme Court as watchdog institutions, independent of the executive and the legislature, not merely to dispense justice but also to ensure that the executive and the legislature did not exceed the authority conferred upon them by the Constitution. Thus the judiciary was given the powers to interpret the laws and the Constitution as also to strike down executive action which violated any law or the fundamental rights of citizens. It was also given the authority to examine whether laws framed by Parliament conformed to the Constitution and declare them void if they violated it.

By a creative interpretation of the provision authorising Parliament to amend the Constitution, the Supreme Court in 1973 also acquired the power to strike down even constitutional amendments which were held by the court to violate the basic structure of the Constitution. Many laws and some constitutional amendments have been struck down by the courts during this period.

In the 1980s the Supreme Court evolved a new jurisdiction which has come to be known as public interest litigation (PIL) and which involved a liberal interpretation of the fundamental right to life and liberty guaranteed by Article 21 to include the right to live with dignity and therefore to enjoy the basic amenities of life such as food, water, shelter, basic education, health care and even the right to a healthy environment. Simultaneously, the court declared that it could and should direct the executive to provide these amenities to citizens who were denied these.

Over the last 30 years this PIL jurisdiction has been used to occasionally direct the provision of basic amenities like food, water, education and shelter to the poor and marginalised sections of society. But increasingly in the last 15 years, the jurisdiction has largely been used whimsically and subjectively by judges ostensibly for protecting the environment. Thus the court has ordered the shutting down of "polluting industries" in and around Delhi and the Taj Mahal in Agra, the conversion of commercial vehicles in Delhi to natural gas (CNG) fuel, the dismantling of all structures on the ridge running through Delhi, the stoppage of any non-forest activity in forest areas, etc. It has also ordered the demolition of the shanties of hundreds of thousands of slum dwellers in Delhi and Mumbai. In Delhi, this was done on the ground that they were polluting the river near which they lived.

While exercising the same PIL jurisdiction, they have also ordered the removal of hundreds of thousands of vendors from the streets of Delhi and Mumbai, ruling that streets were meant for traffic and not for vendors. In short, using this PIL jurisdiction, the courts acquired and have used the power to order anything that an individual judge considered to be in the public interest. The recent actions of the court have clearly shown that by and large the court has given precedence to ‘Environmental Protection’ if there was a perceived conflict between that and the socio-economic rights of the poor. But environmental protection came second when it came into conflict with the interests of ‘Corporate Development’.

Through all this the superior courts in India have emerged as perhaps the most powerful courts in the world, exercising virtually imperial and unchecked powers. While executive action and even legislation could often be struck down by the courts, the directions of the courts, sometimes issued without even notice to the affected parties, were beyond question and had to be obeyed by all executive officers on pain of contempt of court. Of course, often these powers were wisely exercised to correct gross executive inaction.

While the court was acquiring these powers, by an even more inventive (purposive) interpretation of the provision regarding appointment of judges by the government, it also took over the power of appointment. Thus judges of the high court and Supreme Court are now appointed by a collegium of senior judges of the Supreme Court. The judiciary has thus become like a self-perpetuating oligarchy. There is no system followed in the selection of judges and there is no transparency in the system. In particular, no regard is paid to examining the record or credentials of judges in their ideological adherence to the constitutional ideals of a secular, socialist democratic republic or their understanding of or sensitivity towards the common people of the country who are poor, marginalised and unable to fight for their rights in the courts.

Thus the courts in India enjoy virtually absolute and unchecked power unrivalled by any court in the world. In these circumstances, it is absolutely vital that judges of the superior judiciary be accountable for their performance and their conduct – whether it is about corruption or disregard of constitutional values and the rights of citizens.

Unfortunately, neither the Constitution nor any other law has created any institution or system to examine the performance of judges or complaints against them. The Constitution provides that high court and Supreme Court judges cannot be removed except by impeachment. That process requires signatures of 100 MPs of the Lok Sabha or 50 MPs of the Rajya Sabha for its initiation. If a motion containing charges of serious misconduct, with the requisite signatures, is submitted and admitted by the speaker of the Lok Sabha or the chairperson of the Rajya Sabha, an inquiry committee of three judges is constituted to hold a trial of the judge. Only if he or she is found guilty, the motion is then placed before each House of Parliament where it has to be passed by a two-thirds majority in each House.

Our experience has shown that it is practically impossible to remove a judge through impeachment even if one is somehow able to get documentary evidence of serious misconduct. This is because MPs and political parties to which they belong are very reluctant to take on a sitting judge because virtually all of them have pending cases in courts. The judges often behave like a trade union and do not take kindly to brethren being accused of misconduct. It is therefore virtually impossible to get an impeachment off the ground unless the matter has become a major public scandal. Only in those cases is it possible to get enough MPs to sign an impeachment motion.

The only impeachment of a judge to have gone far was that of Justice V. Ramaswami in the early 1990s. After the motion was presented, a judges’ inquiry committee found him guilty of several charges of misconduct when the matter came up for a vote in Parliament. The ruling Congress party directed all their MPs to abstain from voting. Thus though the motion was unanimously passed in the Lok Sabha, it did not get the support of a majority of the total membership of the House and therefore failed. The judge remained in office till he retired but was not assigned any judicial work by the then chief justice. Only last month we have seen a second motion, against a judge of the Calcutta high court, signed and submitted to the chairperson of the Rajya Sabha.

Allegations and charges against a judge, even when supported by documentary evidence, rarely get any coverage in the media because of the widespread fear of contempt of court. The contempt law in India allows any judge of the high court and Supreme Court to charge anyone with criminal contempt and send him/her to jail on the ground that he/she has "scandalised the court or lowered the authority of the court". What "scandalises" or "lowers" the authority of a court is left entirely to the subjective view of each judge. In the case of well-known writer Arundhati Roy, a bench of two judges of the Supreme Court charged her with contempt and sent her to jail merely because she criticised the court in an affidavit.

The facts were these: After the judgement of the Supreme Court in the Narmada dam case in 2000, there was a public protest outside the Supreme Court in which Medha Patkar, the leader of the anti-Narmada dam movement in India, and Arundhati Roy participated. A couple of lawyers (probably acting at the prompting of the court itself) filed a contempt petition against Patkar, Roy and myself (I was the lawyer for the anti-dam movement), alleging that we had raised abusive slogans against the court. The lawyers’ contempt application, apart from being in grotesque language, also contained palpably absurd allegations that Roy and Patkar (who can hardly be considered rowdies) manhandled the burly lawyers.

Roy, in her reply to the court notice, said: "For the court to have issued notice on such a ridiculous petition to three persons who have been vocal in their criticism of the court shows a disquieting inclination on the part of the court to muzzle dissent and stifle criticism." Though he discharged the first notice, the same judge (Justice GB Pattanaik) who had issued the first notice issued a second contempt notice, this time to Roy alone, for daring to berate the court in this manner. They eventually held her guilty of contempt and sent her to jail with Justice Pattanaik sitting as a judge in his own case.

Earlier, the Supreme Court had declared that a person charged with "scandalising the court" will not be permitted to prove the truth of his/her allegations against a judge. Though Parliament has recently amended the Contempt of Courts Act to expressly allow truth as a defence, nothing has been done to prevent judges against whom allegations are made from charging the person with contempt and hauling him or her to jail. The criminal contempt jurisdiction of the court and the cavalier manner in which it is exercised is another example of the enormous and unchecked power of the superior courts in India.

Our campaign for judicial accountability has long been demanding that the courts’ power to punish for "scandalising and lowering the authority of the court" must be taken away by legislation. Of course, this demand has been stoutly resisted by the courts, which claim that deleting this provision would greatly encourage baseless allegations and abuse of judges by disgruntled litigants and would thereby erode public confidence in the courts. But then there is the law of civil and criminal defamation to protect judges against vilification. Moreover, public confidence in the courts as in any person or institution is generated or eroded by the actions of the courts and not by any baseless allegations by disgruntled litigants. However, with such fierce opposition by the courts, the legislature has not had the courage to delete this provision from the Contempt of Courts Act.

In 1991 the Supreme Court by another ingenious judgement involving Justice K. Veeraswami (father-in-law of V. Ramaswami) – then chief justice of the Madras high court who was caught with assets vastly disproportionate to his income – laid down that no judge of a superior court could be subjected to a criminal investigation without the written permission of the chief justice of India. This judgement has been used to prevent the investigation and prosecution of many judges against whom there was documentary evidence of corruption, fraud, misappropriation, etc. This has also increased the impunity of judges who have now got used to the feeling that they can get away with any kind of misconduct, or even criminal conduct, without fear of any criminal action or action for removal. Armed additionally with the power of contempt, they also have little fear of public exposure.

In 2005 India got one of the most liberal and powerful Right to Information (RTI) Acts in the world. It permits disclosure of internal notings and correspondence of public officials, has few exemptions from disclosure, creates an independent appellate body to decide disputes regarding refusal of information. It also provides for penalties against arbitrary and mala fide refusal to disclose information. It applies to all public authorities, including the judiciary. One would have expected that the courts, which had held that even in the absence of any RTI Act the fundamental right to free speech encompassed that right anyway, would have welcomed the application of the right to the courts. Unfortunately however, the court has fiercely resisted the disclosure of all critical information relating to the courts. Several high courts have framed rules, in violation of the RTI Act, that no administrative or financial information would be given. The application fees for RTI applications in the courts are sometimes 50 times that of other public authorities. The courts have thus refused information about appointments of employees of the courts, appointment and transfer of judges and complaints against judges. The Supreme Court even refused to disclose whether the judges are declaring their assets in accordance with the code of conduct that they themselves had framed.

All this makes for an alarming picture of lack of accountability of the higher judiciary in India. You cannot in actuality take any disciplinary or criminal action against misconduct or crimes committed by judges. If you expose them publicly, you run the risk of contempt. And with the effective blocking of the RTI Act in its application to the judiciary, judges remain ensconced in their citadels, safe in the knowledge that no one can even peek into their affairs. This lack of accountability coupled with the enormous unchecked powers that the courts have acquired and are exercising make the judiciary a very dangerous institution and indeed a serious threat to Indian democracy. This lack of accountability has led to considerable corruption of the higher judiciary which is evident from the recent spate of judicial scandals that have erupted in India. A September 2008 report in The Times of India on the corruption perception index shows that the judiciary is perceived to be the second most corrupt institution in India after the police.

It is high time that this unhappy situation is corrected by reforms in the law and amendments to the Constitution. We need to create independent statutory and full-time bodies for the appointment of judges as well as for the performance audit and disciplinary control over judges. These bodies must be independent of the executive as well as the judiciary.

To this end we have made a number of suggestions:

Ø We have suggested a five-member judicial appointments commission and a similar judicial complaints commission. One member each to these commissions could be nominated by (1) The collegium of all judges of the Supreme Court; (2) The collegium of all chief justices of the high courts; (3) The cabinet; (4) A collegium of the leaders of the opposition in the two Houses of Parliament, the Lok Sabha speaker and the chairperson of the Rajya Sabha; and (5) A collegium of the chairperson, NHRC, the CAG, the CVC and the CEC. However, once nominated, the members would have security of tenure and would not be under the control of the appointing authorities.

Ø These bodies must function transparently and must devise clear criteria and methodology for selecting judges and dealing with complaints against them. They must have a small investigative machinery under their administrative control through which they could get disputed and relevant questions of fact investigated. Their decisions about appointments and removal of judges should be final and not subject to executive, legislative or judicial approval.

Ø The Veeraswami judgement must be judicially or legislatively reversed and there should be no additional impediment in the criminal investigation and prosecution of judges. That task could also be entrusted to the investigative organisation under the judicial complaints commission.

Ø The provisions concerning "scandalising the court" or "lowering the authority of the court" must be deleted from the definition of criminal contempt of court and it must be made clear that an allegation, however scurrilous, against a judge would amount to defamation but not contempt unless it presents a clear and present danger to the administration of justice (the US law).

Ø The high court rules under the RTI Act which conflict with the RTI Act must be rescinded.

Unfortunately, neither the government nor the judiciary have shown any seriousness in tackling the problem of judicial accountability or, rather, the lack of it. Nor have they shown any political will to bring in other much needed reforms to repair the virtually dysfunctional normal judicial system, as a result of which hardly anyone is able to get justice through the courts. The executive is happy with a failed, corrupt judiciary which will not hold it to account and the judiciary is happy to enjoy vast powers without accountability. The government has proposed a judicial council which will be an in-house body of sitting judges to deal with complaints against judges. The judges also oppose any independent institution and want only an in-house body of sitting judges. Experience however shows that such in-house bodies and self-regulation rarely works, whether in the judiciary or the bar or within the medical community.

Judicial reforms in India are likely to take place only if there is a strong people’s movement and campaign which puts democratic pressure on the government and shames the judiciary. Unfortunately, until recently there was no such movement. The campaign in the last two years has certainly brought the issue onto the media’s agenda and to an extent the agenda of political parties as well. We hope that it will grow in strength and that we will gradually be able to reclaim the judiciary and restore it as a robust, independent but accountable institution, not merely as an instrument for delivering justice but also for ensuring that the executive and the legislature function in accordance with the ideals and principles of the Constitution.