Sunday 12 July 2009

Tackling Judicial Corruption

Just read a wonderful true story. N. Kannadasan was an Advocate practicing in the Madras High Court. In November, 2003, he was elevated to the High Court Bench as an Additional Judge. But after two years of having been an Additional Judge, he was not appointed as a permanent Judge due to some doubts over his integrity.


He resumed practice in the Madras High Court, and soon became an Additional Advocate General. In July 2007, the Full Court of the Madras High Court resolved that his name may be included as one of the Retired Judges of the Court. In June, 2008, he came to be appointed as President of the State Consumer Disputes Redressal Forum in terms of Section 16 of the Consumer Protection Act. The Act prescribes a requirement that the President must be or have been a Judge of the High Court.


Writ Petitions were filed, praying for a writ of quo warranto to scuttle Kannadasan's appointment as President, on the ground that his integrity had already been established to be under doubt when he had not been appointed as Permanent Judge, and on the ground that an Additional Judge could not be termed as a "Judge" for the purposes of Section 16. The matter reached the Supreme Court, and in a landmark judgment (N. Kannadasan v. Ajoy Khose, 2009 (8) SCALE 351, Justice SB Sinha held that even though an Additional Judge can be considered as a Judge for the purpose of Section 16, the term "Judge" carries with it an implicit requirement that the person is above board in terms of his qualification, merit and integrity. Therefore, since Mr. Kannadasan's term as Additional Judge had ended in a tainted fashion, his case could not fall within the words "has been a Judge".


We are all tired of the immunity Judges enjoy in the name of maintaining the "Independence" of the Judiciary. Time and again we have seen blatant instances of Judicial Corruption ending with In-House Enquiries that recommend "transfer" of the tainted Judge to another Court. However, when the Print and Electronic Media sensationalizes these issues, the need to protect Judges from malicious attacks from disgruntled litigants, interested parties, etc. comes into acute focus as well.


At many a conversation over dinner, I have heard the defence that Judges cannot defend themselves in any forum, and therefore, the need to maintain the dignity of the Judiciary necessitates that we err on the conservative side. It has often reminded me of that famous premiss on which our entire Criminal Jurisprudence stands: It is okay for 99 guilty persons to be acquitted, if it prevents one innocent person from being convicted.


Faced with this conundrum, this Judgment presented an interesting solution. A writ of quo warranto, can be used to question the authority of a person to hold a high public office inter alia in the event that his appointment is violative of any statutory provision. In this case, the requirement of integrity being above board was read into the term "Judge". If quo warranto can be used to challenge someone's appointment, could it not be used to challenge someone's continued occupation of the Post? That would ensure that allegations levelled against a Judge are tested in a Court of law, and the dignity of the Institution itself would not be jeopardized.


The only difficulty is that Writ courts do not entertain disputed questions of fact; but given the alternatives of (a) placing Judges at the mercy of the Police or similar investigating agency, and (b) practically giving Judges complete immunity in order to maintain their independence and dignity, it would not be completely without precedent if the Writ Court enquired into the allegations either on its own, or through a Commission. Of course, the threat of being imposed with exemplary costs would ensure that someone would not step into the Litigation arena lightly.

5 comments:

  1. The problem with testing judicial corruption in a courtroom is that it doesnt sit well with the idea of being accountable. As an institution, the judiciary needs to be accountable to an external authority.
    Being accountable to your brother/sister judges is not enough, it is only slightly superior to the current system of 'internal inquiries' (for cases that do not merit removal through impeachment), because the determination would require a reasoned and publicly available judgment.
    In an internal disciplinary inquiry in a factory, it would be really strange if the authority investigating and passing judgment is the trade union.

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  2. thank you for your first comment john. :-) the advantage of being accountable to the judiciary in a case is that all materials placed become part of a record, and have to be accepted / rejected by a reasoned order. On the other hand, all other bodies do not have the obligation of giving a reasoned order that is available to the public as a judgment, because only a "judicial" process guarantees that. Besides, all other bodies are invariably political. Take any example - Commissions, CBI, Police, anything.

    The bigger difficulty with my suggestion is that a Judge can be removed only through the process for impeachment in the constitution. This suggestion may require an amendment in the Constitution for it to be effective. Keep in mind that the challenge in the case mentioned here was to the "appointment" and not to continuation, and that too of a State Forum Judge, not a High Court or Supreme Court Judge.

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  3. Do we have a problem or are we merely witness to certain harmless eccentricities of curial conduct exacerbated by our tropical climate and inscrutable, heathen ways ?

    Andhra Pradesh High Court's Pernicious Rebellion Against The Law .

    Divakar's Sathyagraha

    News and views from Divakar S Natarajan's, "no excuses", ultra peaceful, non partisan, individual sathyagraha against corruption and for the idea of the rule of law in India. Now in its 18th year.

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  4. ha ha... well said divakar.. in true Krishna Iyer style!

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