Indian Judicial System: Judges in the Dock

Management Guru Arindam Chaudhuri Dean Business School IIPM

The concerted campaign for a thorough clean-up of India's ailing judicial system has gathered momentum even as skeletons have kept tumbling out of its cupboard

India’s higher judiciary is in the news for the wrong reasons. Several judges face corruption charges. The collegium system of elevation of judges to the Supreme Court (SC) bench is under a cloud. Many SC verdicts have riled civil society for their "elitist" and "anti-poor" slant. Not long ago, the higher judiciary had dithered on the question of bringing the assets of SC judges, as well as the functioning of the Chief Justice of India (CJI), within the ambit of the Right to Information (RTI) Act. And now, ex-CJI KG Balakrishnan is in the eye of a storm over former telecom minister A. Raja's attempts to influence a Madras high court judge in a murder case.
The heat and dust that the above developments have whipped up underscore two crucial points. One, the rot runs really deep and, therefore, a clean-up of the nation’s legal system is the need of the hour. And two, the debate on making the superior judiciary – the SC and the high courts – as accountable as the other organs of the Indian republic is now on the national agenda.
The fact that a debate is on is itself a huge step forward for the cause of judicial accountability in a country where the office of a judge has been outside the purview of public discourse for decades. Although the judiciary still isn’t accountable to anyone, and the dreaded provisions of the contempt of court law are still very much in place, the media has lately been openly discussing issues related to misconduct by judges.
The man leading the charge is Prashant Bhushan, Supreme Court lawyer and convenor of the Campaign for Judicial Accountability and Reforms (CJAR). He currently faces contempt proceedings for levelling corruption charges against the higher judiciary (in an interview given to a weekly magazine). An unfazed Bhushan has filed an affidavit reiterating the very charges that have led to the contempt notice. He has, of course, received support from leading lights of India's civil society, including Aruna Roy, Harsh Mander, Nikhil Dey and Arvind Kejriwal.
Bhushan's father, Shanti Bhushan, former Union law minister and senior lawyer, has refused to tender an apology to the SC on his or his son's behalf, saying, “I am of the firm belief there is a lot of corruption in the judiciary. The question of apology does not arise. I am prepared to go to jail.”
In a landmark September 2, 2009 ruling in the judges’ assets case, Justice S. Ravindra Bhatt of Delhi high court had said: “All power – judicial power being no exception – is held accountable in a modern Constitution. Holders of power too are expected to live by the standards they set, interpret, or enforce, at least to the extent their office demands.”
Hailing the judgment, former CJI J.S. Verma, had asserted: “These principles are unexceptionable. It would be a pity if the judgement is not accepted in good grace and it is challenged in appeal by the Supreme Court, ultimately before itself!”
SC did appeal against the Justice Bhatt judgment. Earlier this year Delhi high court not only upheld its earlier ruling but also asserted the provision of the RTI Act applied to the office of the CJI as well.
Life has never been a smooth arc for Prashant Bhushan. He went to IIT Madras only to leave after a single semester. He then headed to Princeton University to study economics and philosophy. Once again, he left the course midway. Destiny had other ideas for him. He finally studied law in Allahabad University.
Bhushan now fights corruption among judges. He states that there is only one way left for him in this crusade: utilising the power of public pressure to make the judiciary accountable and corruption-free. His approach is paying dividends. CJAR, which is a group of civil society activists, has taken up cudgels against “rampant corruption” in the judiciary.
The advocate's biggest achievement to date has been the case relating to retired CJI YK Sabharwal, which hogged the limelight a few years ago. Back then, casting aspersions on judges was unthinkable. But times have changed and pressure is mounting from all quarters on SC and high court judges to become more transparent in their dealings.
Understandably, the judges aren't taking things lying down. They assert that any external monitoring of judges would undermine the independence and objectivity of the judiciary. This stand is in response to a suggestion from Prashant Bhushan supporting the setting up of a National Complaints Commission.
However, not everybody in the legal fraternity is in agreement with Bhushan's idea. Ravi Kiran Jain, senior advocate in Allahabad, tells TSI: “I feel there is a bigger rot in the bar council. A large number of practising advocates in the lower courts are no more than quacks.” The fact that judges have a conflict of interests is an open secret. Relatives of judges have been practising advocates in lower courts, high courts and even in the SC. “It is a known fact that AM Ahmadi’s daughter practised in the apex court when he was the CJI,” says Naresh Chandra Rajvanshi, president, Allahabad High Court Bar Association and ex-chairman of the Bar Council.
The SC’s current official line is that exposing judges to all-out scrutiny under the RTI Act would undermine judicial independence. But those in favour of accountability argue that ‘independence’ means independence from the executive, and not freedom to indulge in corrupt practices and other forms of misconduct.
There is an urgent need to clean up the judiciary and this is a matter of highest priority. Rajvanshi suggests a simple solution. “The initial appointment of judges should be outside their home states. This will minimise allegations being levelled on judges. About 15-16 years ago 21 judges of Allahabad high court had been transferred and after that instances of favouritism had significantly reduced.”
Some legal experts feel direct attacks on judges would undermine the image of the judiciary. However, Justice DV Shylendra Kumar runs a blog that has raised the hackles of many judicial circles. In a post on the blog www. nyayabharat.blogspot.com about a year ago, he wrote: “The judicial system in our country has been shrouded in mystery, and secrecy as is perhaps the position elsewhere in the world and judges are expected to maintain distance, aloofness and should be inaccessible to the common people…”
After the enactment of the RTI Act in 2005, the tussle between civil society and the judiciary intensified. The row over judges' assets started when Subhash Chandra Agrawal filed an RTI plea seeking information about what the judges owned. This triggered a tussle between CIC and SC. A retired district court judge told TSI, “Judges should not expect they will be sitting on piles of information forever.”
The collegium system of appointment of judges, too, has been hotly debated in the media and on other public platforms in recent years. Many legal experts have repeatedly pointed out that the system of appointment of judges is seriously flawed. There were many highly capable judges likes of RS Sodhi and former CJI of Delhi High Court AP Shah in the past who never made it to the Supreme Court.

‘Corrupt judges are afraid of me’
Prashant Bhushan, SC Advocate

Should their be an independent agency to judge the judges or to monitor the judges?

Yes, there should be. We have been advocating the constitution of National Complaints Commission.

What can be the composition of such a body?

Eminent people from all walks of life can be part of such a body. I am not in favour of putting retired judges to head such a body or be a part of it because they might have vested interests.

Have you ever felt some kind of ill-feeling among judges when you argue in the court?

No. My practice has not been affected at all. See, there are three types of judges. First is corrupt judge and since they are corrupt they are afraid of me. He knows very well that I cannot be bribed or browbeaten. The second type are rigorously honest and they support me as they feel I am cleansing the mess in the judicial system. The third kind of judges is passively honest. They are honest but they feel whatever I am doing will tarnish the image of the judiciary. Their reaction, however, has been very limited and it has not affected my professional practice.

Now, there is lot of pressure on judges to become more transparent. What is the reaction among them?

There is a problem of mindset change among the judges who by and large feel that there should not be any external force on them and the only way to change is through self-regulation. In my view this is not correct as self-regulation has failed miserably which is clear from examples of Bar Council and Medical Council. The in-house committee of judges, too, has not been very effective barring few cases such as of Soumitra Sen and Nirmal Yadav in Chandigarh.

‘Appointments are arbitrary’
R S Sodhi, Retired Delhi High Court Justice

Despite proven capability and competence you did not make it to Supreme Court. What could be the reason?

(Laughs)….There were more competent judges than me in the queue.

Don't you feel there is something wrong with the system of appointment of judges?

Yes, there is tremendous arbitrariness in the way judges are appointed in the Supreme Court. It does exist.

Any regrets for not having made it to the Supreme Court?

No regrets… At least I made it to the Delhi high court. I was upright and always tried to take the side of truth be it in the Jessica Lal case or any other case. Nine-five per cent of my judgments were oral and spontaneous.

Your comment on the Supreme Court criticism of Allahabad high court…
(Cuts in…) Justice Katju was Chief Justice of Allahabad high court and he knew this fact for a long time. He could have taken steps to rectify the system.

Are you aware of Prashant Bhushan's campaign against corruption in the judiciary?
Yes. He is doing a commendable job but it will be premature to say how effective the campaign will be. The basic idea is whatever system you create, if people at the helm of affairs do not understand their responsibility, it will not work be it judicial commission or collegium or anything else.


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Privately owned sanctuaries in Karnataka have emerged as an alternative model for forest conservation in the Western Ghats

IIPM Mumbai Campus

They are men on a remarkable mission. What they do for a living individually is none too unusual. G.N. Ashokavardhana owns a small book shop and Krishnamohan Prabhu is a surgeon. But together, they represent a whole new movement. The duo takes care of a private forest reserve in the Western Ghats. Importantly, they neither receive nor expect any help from the government.

Having jointly bought 15 acres of land in the Bisle reserve forest, Ashokavardhana, owner of Athree Book Centre in Mangalore, and Dr Prabhu have set out to preserve the biodiversity of the area. Bisle, located near Kukke Subrahmanya, a small hamlet in the Western Ghats, has one of India's densest rain forests. The ecology here is extremely fragile and under constant threat from city dwellers who frequent the many resorts that dot the reserve forest today.

It isn't as if Ashokavardhana and Dr Prabhu are sitting on pots of money. What drives them is grit and commitment to the cause of environmental conservation. They decided to pool their resources together as neither could have taken the onus of running a private sanctuary single-handedly. “We learned about a scenic stretch near Bisle reserve forest, which was being eyed by a party that wanted to set up a resort. We decided that something needed to be done to protect the sanctity of the forest. Hence this joint venture,” says Dr Prabhu.

The duo has left the land exactly the way it was when they bought it. “We may now be legal owners of this glorious patch, but we would like it to remain a natural forest,” he says. So no barricades have been put up around the land nor has the stretch been altered in any other manner.

Says Ashokavardhana: “Preserving this sacred forest in the face of indiscriminate commercial activity is the need of the hour. Nature lovers can visit the forest on foot and enjoy the wilderness on their own. Who needs a resort in the middle of the forest to attract travellers? If you want to drink and dance, you can opt for any commercial outlet in the city. Leave the forest alone.”
While Ashokavardhana owns nine acres of private forest land in Bisle Ghat, Dr Prabhu has the remaining six acres.

They aren't the only ones in this domain. Another private reserve forest, the much bigger SAI Sanctuary, is located in the heart of the watershed area for the entire peninsula and UN-designated biodiversity hotspot.

From the initial purchase of just 55 acres of private forested land in 1991, the sanctuary has grown to more than 300 acres. Its positive influence is being seen and felt in the national parks and wildlife sanctuaries that border Brahmagiri, Nagarhole and Bandipur.

Uttar Pradesh-based Anil Kumar Malhotra, founder-president of SAI Sanctuary Trust (SST) bought 55 acres of private land when he decided to move to Coorg 18 years ago. But he did not alter the land for plantation or any other purpose. Instead, he just enriched it further by adding acreage as time went by. He wanted this land to be just the way nature meant it to be. As a result, the 300 acres of private land is richer in terms biodiversity than the surrounding government sanctuaries like Nagarhole and Bandipur.
Many naturalists and scientists have over the years done research within its grounds. Today the sanctuary has a rich variety of flora, including hundreds of different indigenous trees and plants – many with medicinal value – as well as numerous rare and threatened species of animals. The sanctuary is home to river otters, civet cats, giant Malabar squirrels, lesser loris, various types of deer, monkeys, and snakes (including the Indian King Cobra), dhole (Indian wild dog), foxes, jackals, leopards, the Asian elephant, and the Royal Bengal Tiger. The forest canopy is frequented by over 300 different kinds of birds, including the one that is on SST’s logo – the paradise flycatcher. Many of these species of both flora and fauna are found nowhere else on the planet.

SST is a registered nonprofit organisation originally formed to run the sanctuary. From different countries and cultures and from various walks of life, the trustees and advisors of SST include businessmen and educators, writers and speakers, veterinarians and naturalists, scientists and environmentalists. Protection of forests and their wildlife is the link that has drawn these trustees together. “We have kept our land as pure as it was earlier. Many scientists and like-minded people who come here for research and other reasons take great pleasure in discovering the rare flora and fauna, ” says Kashi, manager of Sai Sanctuary.

Government-owned forest land has been overrun in recent years by commercial establishments out to profit from the wanderlust of tourists. As part of this kind of tourism promotion, sprawling resorts and guest houses have come up in the forests, endangering their flora and fauna. Ashokavardhana alludes to the popular Bhagavathi Nature Camp, a resort run by the forest department near Kudremukh town. “It started as a small camp but as its fame grew the place has turned into a source of great disturbance in the once-peaceful forest,” he says.

Men like Ashokavardhana and Dr Prabhu are determined to make a difference. But how do they manage to maintain their little private sanctuary in the absence of monetary gains? The answer is simple. They say: “Preserving forests and wildlife requires no cost. Just leave the natural forests as they are and do nothing. Why do we need money?”

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BJP's New Hue

IIPM Mumbai Campus

With an eye on resurrecting its political fortunes at the Centre, the saffron brigade has donned a liberal cloak and begun to train its focus on Muslims and Dalits

In an incident that can only be termed intriguing, Gujarat Chief Minister Narendra Modi, on November 15 this year, visited Ahmedabad's Muslim-dominated Juhapura locality, which is often referred to as “mini Pakistan” by the locals. The occasion was a Sufi music and qawwali programme at Sarkhez ka Roza, a Mughal era tomb, organised by the Gujarat government under a special drive to preserve and maintain heritage buildings. More interestingly, the tomb was especially chosen for the programme at Modi's behest. It was for the first time after the 2002 Gujarat riots that Modi had come calling here. On this visit, he spent a considerable time with Muslims of the locality.

December 6 is a special day for the BJP. Vishwa Hindu Parishad and other Hindu organisations celebrate it as shaurya diwas throughout the country, and BJP leaders make their presence felt in large numbers in these programmes. It is the day of Ambedkar’s death anniversary as well. This time around, the BJP top brass forgot Ram Lalla and chose to put the temple issue on the backburner. It instead focussed on Ambedkar. While Lal Krishna Advani bowed his head before Ambedkar’s statue in Parliament, prominent BJP Dalit leader Satya Prakash Jatiya demanded that Ambedkar’s parinirvana site, the place where he died in New Delhi, should be accorded the same status as Mahatma Gandhi’s memorial. The party's other Dalit MPs in their letters to the Prime Minister echoed Jatiya's demand.

On December 12, organisations associated with VHP organised a yagna and a meeting of sadhus for the construction of Ram temple in Delhi. It was incumbent upon the local BJP leaders to make the programme a success. BJP's national organising secretary Ramlal convened several meetings of the cadre. However, on the day of the programme no BJP leader of repute was seen on the dais. Even the handful who turned up preferred to sit off the stage. Usually, such programmes see a huge gathering of big and small BJP leaders.

These incidents are pointers to the fact that Nitin Gadkari’s BJP is changing. It has been a year since Gadkari took over the reins as party president and the outcome of his policies is clearly visible. With an eye on the future political gains, the party is keen to shed its staunch Hindutva image and look more liberal. Gadkari aims to increase the party’s vote bank by 10 per cent by 2014 to wrest power away from the Congress.
The change in the party’s policies and programmes is a result of this thinking. Gadkari is eyeing the Muslim and Dalit vote bank which has traditionally been with the Congress and of late with other secular parties. Hence, instead of the temple, the party wants to make development and good governance its key issues. Gadkari has also coined two new slogans that embody the party’s new focus, “politics for development” and “antodaya” (meaning the development of the marginalised). For the latter he has established a special Antodaya cell in the party. For the politics of development, he has instructed all BJP workers to play a facilitatory role to government departments running development schemes.

Actually, it is now more of a compulsion for the BJP to come out of its hardline image, discard old issues and talk of development. At a time when Congress leaders, including Sonia and Rahul Gandhi, are making development the focus of all party policies, it is but natural for the BJP to follow suit. As political analyst Dr Subhrokamal Dutta puts it, “In a democracy, the politics of the opposition is determined by the agenda of the ruling party. If the ruling party is talking of development, the opposition should ideally do the same.”

But the question is: is RSS happy with the recent development of BJP distancing itself from the temple issue? According to sources close to Gadkari, this change in politics enjoys the support of RSS chief Mohan Bhagwat. Even otherwise, Gadkari, who became the party chief at the behest of RSS, consults the organisation in every matter of importance.

As soon as he became the party chief, Gadkari initiated a process of dialogue with Muslims. In almost all his speeches he would cite the example of BJP ruled states, especially Gujarat, where development-oriented policies of the government had helped Muslims progress through an increase in their income and employment. By putting aside the temple issue and by stressing development programmes initiated for the benefit of Muslims and Dalits, the party is sending out the message that it is no longer a party unfriendly towards them. Mohd Idris Khan, a Muslim BJP leader in Ghaziabad, UP, and former district president of the party’s minority front, seconds this observation. “Although there have been many schemes for the development of the minorities right from the time of Kalyan Singh to Atal Bihari Vajpayee, but Muslims were largely apprehensive of the party's motives. By pushing aside the temple issue, the party is ensuring that more Muslims come into its fold,” says Khan. The grant of aid to madrasas in Madhya Pradesh and Gujarat is one of the steps that have been taken to woo the Muslims.
Senior BJP leader and former cabinet minister Shahnawaz Hussain says, “Through our work we are trying to remove the misconceptions that had been put into the minds of Muslims about the BJP. As a result, in the recent Bihar elections we have won a majority of Muslim-dominated seats. We have the support of almost 21 per cent Muslims there. In the panchayat and municipal council elections of Gujarat, our candidates have won on more than 100 Muslim dominated seats.”

To attract Dalits to the party, the BJP has started celebrating the birthdays and death anniversaries of several Dalit icons in a grand manner. It has also decided to raise issues pertaining to Dalits. This year, for the first time the party organised grand programmes on Valmiki Jayanti and on Ambedkar Diwas.

The BJP has understood that in today's coalition politics, Ambedkar is more relevant than Ram. In the BJP-ruled states special programmes are being formulated for the uplift of the Dalits but the focus is on educating them. The party believes that once educated, the Dalits will be more aware and parties like the BSP will not be able to exploit them.

National president of the BJP SC front Dushyant Kumar Gautam says, “Special funds are being allocated for the education of Dalits in BJP-ruled states. Our governments are giving scholarships on a large scale to Dalit children to encourage them to go abroad for higher studies.” It shows the aprty's changed perception of the “swadeshi”. The party’s earlier stance was to oppose the videshi (foreign).

Gadkari sees the party’s future in Ambedkar and Antodaya and not in Ram Lalla. Though a faction of the party is extremely unhappy with the policy alteration, Gadkari does not seem to care as long as he enjoys the Sangh's support.

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Save the Girl Child: Anganwadis may monitor against families and doctors misusing sonography machines

IIPM Mumbai Campus

The shameful drop in girl child ratio (to 880 per 1,000 males) has propelled the government to initiate new measures to tackle this social menace in the state. In a revolutionary move, the state government plans to involve more than 4,000 anganwadi workers across Maharashtra to play the role of whistleblowers against families and doctors misusing sonography machines to identify and abort female foetuses.

The misuse of sonography machines in the backward regions of Nandurbar, Chandrapur, Akola, Gondia and Buldhana, posed a new challenge to the state administration. In order to meet this challenge, Minister of women and child welfare, Varsha Gaikwad, proposed the movement to engage anganwadi workers as monitoring agents. “An unassuming, low-profile anganwadi worker is the best bet. Through their close conventional networking, they can elicit all the details about developments in the family. They can not only monitor but also alert the administration about the misuse of the sonography," says Gaikwad.

In the past, former health minister Vimal Mundada took concrete steps to check rampant misuse of sonography machines. However, medical practitioners often took advantage of loopholes in the legal system to manipulate it to their advantage.

Not one to give up the fight against the skewed sex ratio, Gaikwad has travelled more than 2,000 km criss-crossing parts of Marathwada, Vidarbha, western Maharashtra and Thane regions. She laments, “It is a phenomenon that has broken economic and social barriers.

We all know that being a girl is super special. Sadly, not everyone seems to think so. That's why iDiva is celebrating September as "Save the Girl Child" month. Join us as we raise awareness about this cause, highlight initiatives that promote girl children and explore what we can do to make a difference. There's also loads of fun in store 'coz we're celebrating just how special we girls really are!

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