The judiciary in the country today has come to enjoy enormous powers. It is not only the arbiter of disputes between citizens, between citizens and the state, between states and the union, it also, in purported exercise of powers to enforce fundamental rights, directs the governments to close down industries and commercial establishments, demolish jhuggis (huts), remove hawkers and rickshaw pullers from the streets, prohibit strikes and bandhs, etc. In short, it has come to be the most powerful institution of the state.

In fact, the judiciary today does not function as an instrument of justice for the vast majority of the country’s people. On the contrary, most of the judiciary appears to be working to the benefit of wealthy corporate interests that today control the entire ruling establishment. Thus, more often than not, judicial orders today have the effect of depriving the poor of their rights rather than restoring their rights which are being rampantly violated by the powerful and the state. The ideology of the courts today, as reflected in their judgements, is more right wing and reactionary than even the government which functions as an agent of powerful corporate interests.

The judiciary has remained largely impervious to the daily and widespread indignities heaped upon the poor. Thus when the poor are deprived of their land and the natural resources on which they survive, without any rehabilitation, the courts have, barring a few exceptions, refused to interfere, even when they are petitioned on behalf of these people and even when such dispossession works to benefit private corporate interests. What is worse, however, is that the courts have often in the recent past themselves ordered the eviction of poor slum dwellers from their dwellings without any rehabilitation.

This has been done without giving them a hearing, in violation of the principles of natural justice and in violation of their right to shelter. This has been done sometimes on the ground that the slum dwellers do not legally own the land on which their jhuggis are put up and sometimes on the ground that they are on the banks of the Yamuna river or on the Delhi Ridge, which are environmentally sensitive areas. But when shopping malls are built on the same ridge, or the Akshardham temple comes up on the same banks of the Yamuna river, all manner of flimsy excuses are trotted out to allow them to do so.

We find the same bias against the poor when we examine court orders in matters involving civil rights. Bail applications by the poor and the weak are often not heard for years while those of the wealthy and powerful, argued by corporate lawyers, get heard immediately. Civil rights activists like Binayak Sen are accorded hostile treatment by the courts and denied bail even as smugglers and white-collar racketeers are granted bail with alacrity.

Every other institution of the state is accountable to both the anti-corruption agencies and to the judiciary, which has the power of judicial review over every executive and legislative action. Moreover, the political executive is accountable to the legislature and the legislature is democratically accountable to the people – that, at least, is the theory of our constitutional scheme.

However, when it comes to the judiciary we find that it is neither democratically accountable to the people nor to any other institution. The only recourse against a judge guilty of judicial misconduct is impeachment, which has been found to be a totally impractical remedy. To initiate the impeachment process, an impeachment motion would require the support of 100 Lok Sabha or 50 Rajya Sabha MPs. This cannot be secured unless two conditions are satisfied. First, one must have conclusive documentary evidence of very serious misconduct against a judge. And second, the evidence and the charges should have been publicised enough so that they assume the proportions of a public scandal. Until this happens few MPs would be willing to put their signatures on an impeachment motion. Most MPs or their political parties have cases pending in court and no one wants to invite the wrath of the judiciary.

We have learnt this from experience, in several instances where the impeachment of judges was sought on compelling documentary evidence of serious misconduct. But the media is afraid and unwilling to publicise the charges against judges (even when they have documentary evidence to back the charges) for fear of being charged with contempt of court, which hangs constantly as a sword over their heads. This, unfortunately, has not changed, not even after truth was specifically incorporated as a valid defence in the Contempt of Courts Act. Never was this more starkly visible than in the case of former chief justice of India, Justice YK Sabharwal.

In May and June 2007, the newspaper Mid Day carried a series of articles that showed how Justice Sabharwal passed orders sealing commercial properties in residential areas in Delhi after his sons had entered into partnerships with at least two leading shopping mall and commercial complex developers in the city. The judge’s orders stood to directly benefit his sons and their partners by pushing the sealed shops and offices to shopping malls and commercial complexes thus driving up their prices. Mid Day published substantial documentary evidence to support this huge story, exposing what appeared to be a scandalous conspiracy at the apex of the judiciary.

Yet no other media organisation or any judicial, executive or legislative authority even batted an eyelid at this exposé. Thereafter, on August 3, 2007 the Campaign for Judicial Accountability & Judicial Reforms, led by several eminent persons, held a press conference where it released a detailed charge-sheet containing as many as seven serious charges against Justice Sabharwal, each backed by documentary evidence. But the story was still blacked out by the media. Ultimately, it was gradually picked up by the mainstream media following commendable efforts by Tehelka and Karan Thapar reporting fearlessly on the issue. The story hit the headlines in the mainstream media only after the Delhi high court convicted four Mid Day journalists for contempt of court.

These events only served to highlight the enormous fear of contempt that prevails in the media, a fear that has effectively deterred it from investigating, pursuing and publishing stories about judicial misconduct and corruption. If there are few reports of corruption in the higher judiciary it is not because the phenomenon is rare but because these instances are not investigated or reported by the media.

So if you have evidence of corruption against a judge there is not much you can do about it. You cannot expose it publicly because of the fear of contempt of court and in the absence of public exposure, impeachment, of course, is a non-starter. You cannot even register a first information report (FIR) against a judge under the Prevention of Corruption Act thanks to an embargo created by the Supreme Court in 1991 through a judgement where it held that no judge can be subjected to criminal investigation without the prior written consent of the chief justice of India. In the 17 years since that judgement, not a single FIR has been registered against a sitting judge.

To make matters worse, the judiciary has also attempted to insulate itself from the Right to Information Act. This was sought to be done by not appointing public information officers or by framing rules that effectively deter information-seekers. Many high courts, such as those in Allahabad and Delhi, demand an application fee of Rs 500 (for information requests) as opposed to the Rs 10 charged by other public authorities. Many have framed rules that prohibit the disclosure of information on administrative and financial matters. Thus information about the appointment of Class 3 and 4 employees by the high court (which is usually done arbitrarily and without any public advertisement being issued or proper procedure being followed) was denied by the Delhi high court citing illegal rules that are in complete violation of the Right to Information Act. The courts are emboldened to make such rules safe in the knowledge that any petition challenging these rules will also come up before them.

This has, in effect, led to a position of absolute impunity for the higher judiciary. Not only are corrupt judges effectively insulated from any action against them, they have also protected themselves from public exposure of wrongdoing by using the threat of contempt of court.

The law of contempt has often been used to punish outspoken criticism and exposure of judicial misconduct. In the case of author Arundhati Roy, the Supreme Court convicted her and sent her to jail for the contents of an affidavit in which she wrote that the court’s earlier contempt notice to her, Medha Patkar and myself in an absurd contempt petition showed a "disquieting inclination on the part of the court to silence criticism and muzzle dissent". The bench that sent her to jail for what was, in fact, eminently justifiable criticism, was headed by the same Justice Pattanaik against whom her critical remarks were directed.

This is one of the problems that arise with the exercise of such totally arbitrary power. It allows a judge to sit in judgement over his own cause. This is another reason why the newly introduced defence of truth in the Contempt of Courts Act does not solve the problem. Given the current jurisdiction of the courts, it cannot. You may have to prove the truth of your allegations against a particular judge before that very judge!

The journalists from Mid Day were convicted despite their offering to prove the truth of all their allegations against Justice Sabharwal. The Delhi high court held that the truth of the allegations was irrelevant since they had brought the entire judiciary into disrepute. The court held that: "The nature of the revelations and the context in which they appear, though purporting to single out (the) former chief justice of India, tarnishes the image of the Supreme Court. It tends to erode the confidence of the general public in the institution itself. The Supreme Court sits in divisions and every order is of a bench. By imputing motive to its presiding member automatically sends a signal that the other members were dummies or were party to fulfil the ulterior design."

All this only underlines the need to do away with the jurisdiction of punishment for "scandalising the court or lowering the authority of the court". Such a jurisdiction does not exist in the US where only acts that constitute a "clear and present danger to the administration of justice" are considered to be in contempt of court. Even in the UK, as far back as 1899 the Privy Council had said that courts in England "are satisfied to leave to public opinion, attacks or comments derogatory or scandalous" of their judges and their courts. But since the judges were dealing with a British colony they added a rider to their opinion, that "in small colonies consisting principally of coloured populations the enforcement in proper cases for committal of contempt of court for attacks on courts may be absolutely necessary to preserve in such a community, dignity and respect for the court."

It is this argument, once employed by the Privy Council for colonies of coloured populations, that is still being used by our judiciary today, which seeks to retain the power of punishing for contempt any criticism or exposure of judicial misconduct as "scandalising the court". It should be obvious to anyone that respect for the courts cannot and does not depend on the existence of this power. It depends entirely on how the actions of the judges and the courts are perceived by the people. It would be fair to say that every exercise of this power to punish a criticism, however fierce, of a judge or court, will only bring the judge and the court into greater contempt and public ridicule. This power can only be used to stifle criticism and exposure of misconduct. The time has therefore come to do away with this power altogether by an amendment to the Constitution and the Contempt of Courts Act.

The judiciary claims that any outside body having disciplinary powers over them would compromise their independence. They claim that they have set up an "in-house mechanism", a committee of judges, to investigate and take action on complaints against judges. It is this "in-house procedure" that the proposed Judges (Inquiry) Bill 2006 seeks statutory status for. One major problem with the "in-house procedure" is that judges regard themselves as a close brotherhood and are reluctant to take action against those they consider their brothers and with whom they interact closely every day, both within and outside the courts. Moreover, they believe that to expose bad apples among them would reflect poorly on the judiciary as a whole. This is why most complaints against judges (even serious ones backed by documentary evidence) are brushed under the carpet and not investigated or inquired into.

There are other problems with the bill as well. According to the provisions of the bill, the complainant is required to disclose his or her source of information for every part of the complaint. In addition, the proposed judges committee can even send a complainant to jail if they believe that the complaint is a frivolous or mala fide one. These provisions will effectively ensure that few persons will actually summon up the courage to make a complaint before this in-house body of judges. Moreover, even if the in-house committee were to find a judge guilty of serious misconduct, it would only recommend impeachment. The matter would then be put up for a vote in parliament – a process that can so easily be frustrated by partisan political considerations as was observed in the Ramaswami case. What’s more, the provisions of the bill allow a ‘guilty’ judge the right of appeal to the Supreme Court even after parliament votes to remove him. All this will only ensure that no judge will ever be removed from office until he or she retires.

This emphasises the need for an entirely independent constitutional body called the National Judicial Commission (NJC) vested with the power to investigate charges against judges and take action against them. The Campaign for Judicial Accountability & Judicial Reforms has suggested that such a five-member commission could be constituted in the following manner: 1) A chairperson to be selected by all judges of the Supreme Court of India; 2) A member to be selected by all chief justices of the high courts; 3) A member to be selected by the cabinet; 4) A member to be selected by a committee comprising the speaker of the Lok Sabha, leaders of opposition in the Lok Sabha and the Rajya Sabha; and 5) A fifth member to be selected by a committee comprising the chairman of the NHRC, the CAG and the CVC.

Once selected, the members of the NJC would enjoy a fixed tenure of five years to ensure they remained independent of control by any authority. The commission would have investigative machinery under its control through which it could get charges against judges investigated. Thereafter, if it did find evidence of misconduct, it would set up a three-member committee to hold a trial of the judge concerned. If the judge was found guilty, the NJC could recommend appropriate action against him or her, the implementation of which would then be mandatory. The matter need not go to parliament at all. Whatever the details of this body, the time has certainly come to put in place a wholly independent body to investigate and punish judges for judicial misconduct.

The judicial commission could also be used to select judges for appointment to the high courts and the Supreme Court. It could also be empowered to handle the transfer of judges to different high courts. This power of appointment and transfer was appropriated by the Supreme Court through an inventive interpretation of the words "in consultation with the chief justice of India". The court said that in order to preserve the independence of the judiciary, primacy in the matter of judicial appointments must remain with the judiciary. Unfortunately, however, the process of selection and appointment of judges has hardly improved since then; if anything, it has become even more opaque. It is also perceived to be largely arbitrary and nepotistic. We definitely need a much more transparent and credible system of judicial appointments. The NJC, being a full-time body, could devote the requisite time to select the best candidates by following a fair and transparent system that methodically examines the merits of possible candidates on some predetermined criteria. This would also free the appointment system of government control and the nepotistic influence of the judiciary.

A powerful judiciary without accountability is not only an anathema to our Constitution but also a recipe for disaster for our democracy. The situation needs to be urgently rectified. n

(Prashant Bhushan is a senior lawyer practising at the Supreme Court of India and is part of the Campaign for Judicial Accountability & Judicial Reforms.)