Judicial transparency is not an act of charity

A Statement by the Asian Legal Resource Centre

INDIA: Judicial transparency is not an act of charity

The Indian judiciary is once again in the news and this time too it is for appalling reasons. The national and regional media have been reporting in the past two weeks regarding the disproportionate wealth between the declared and known incomes, of some of the close relatives of the former Chief Justice of India, Justice K. G. Balakrishnan. The reports allege that this wealth was amassed in the past four years, during which Justice Balakrishnan served as the Chief Justice of the country. The fact that the persons suspected of corruption are the family members of the former Chief Justice and that the former judge is the current Chairperson of the National Human Rights Commission (NHRC) does not make matters easy for the former judge. On the contrary, it casts a duty upon him to explain why his name or that of the institution he once led and the one he now chairs should not be dragged into a scandal.

During the past fifteen years, the country's judiciary has been embroiled in one controversy after another, all involving allegations of corruption and nepotism of some of the senior judges in the country. It is not a matter of mere unpleasant coincidence that some of the suspected judges have served as Chief Justices, but on the contrary it exposes the built-in defects of the Indian justice institutions, a fact that lawyers, a former law minister, experienced journalists and many of the former senior judges in the country equally agree upon. There is a petition, pending before the Supreme Court, on the question of allegations of corruption against former Chief Justices of India. It is unfortunate that this petition is in the form of a contempt of court proceeding against two Senior Lawyers, Mr. Prashant Bushan and Mr. Santhi Bushan, for their attempt to bring the long overdue transparency and accountability into the judiciary, particularly within the higher judiciary.

During Justice Balakrishnan's tenure as the 37th Chief Justice of India, he did not help much in dissipating the cloud of suspicion that has encircled the Indian judiciary and thus establishing the integrity of the institution that he was asked to lead. In his capacity as the Chief Justice, Justice Balakrishnan became infamous for his unyielding attitude of refusing the operation of the Right to Information Act, 2005 upon the higher judiciary. Though he later succumbed to equally uncompromising public sentiments and let willing judges, who were in the majority, to disclose their assets, but by then he had done further damage to the already bruised image of the institution.

Justice Balakrishnan was in the centre of yet another controversy during his tenure as the Chief Justice and as the head of the Supreme Court Collegium for the appointment of judges, when he showed undue haste for the promotion of a High Court judge to the Supreme Court, despite allegations of wide ranging corruption against the judge who was recommended to be promoted. The President of India declined to accept the Collegium's recommendation for promotion of the judge. Justice Balakrishnan's subsequent acquiesce for the Central Bureau of Investigation to investigate allegations of corruption against High Court judges did nothing to restore the already lost public confidence.

Given the fact that the allegations against the former judge's family are based on substantial proof and that the suspected corruption happened during the tenure of Justice Balakrishnan as the Chief Justice of India, one cannot complain that the reports have brought further adverse public perception upon the office of the Chief Justice. The nature of the allegations and the institutions involved are such that the Chairperson of the NHRC cannot shrug it off by mere denial.

What is at stake here is more than an individual or his family affairs. What is being debated in public is not about who made what money during which time. The debate concerns the trustworthiness of the country's supreme justice institutions and the general agony about these institutions, the Supreme Court in particular, is rooted in the reality that these institutions are highly susceptible to misuse. In the absence of any mechanism or process that is transparent enough to meet the standards of the modern democratic country that Indians believe they live in, mere adherence to a logic of the medieval ages that 'we are knowledgeable and reasonable enough to correct ourselves' is not enough to ensure basic norms of transparency within the judiciary. The public anger in India today is against those who pose hindrances for bringing transparency and accountability in public service and into institutions that the ordinary person depends upon as the last resort in his pursuit for ju stice. It is the very essence of the ability of the country's democratic institutions, and thus that of the country itself, that has been challenged

In a separate vein, Justice Balakrishnan is also considered as the embodiment of Dalit liberation in India. It is thus equally the responsibility of the Dalit movement, in India and abroad, to ensure that the allegations against the first Dalit Chief Justice will not be used against the Dalit movement in the country.

In the present environment one cannot find fault with those who have started believing that the country's judiciary gives tacit approval to corruption and nepotism in favour of those who wield power. The comments that refer to the Vigilance and Anti-Corruption Bureau's investigation recommended by the Chief Minister of Kerala against one of the relatives of the former Chief Justice as a farce, also cannot be taken lightly.

In the mêlée of these allegations, suspicions and counter allegations what is at stake is the public trust of two important national institutions, the Supreme Court of India and along with it the entire judiciary, and the NHRC. Many have demanded Justice Balakrishnan's resignation from the post of the Chairperson at the NHRC. To save the institutions from further moral damage, it is not enough that those who are accused of corruption are simply allowed to resign. Now that a formal complaint has been made against the former judge, the allegations must be investigated. And, if the investigation leads to the discovery of a crime, it must be prosecuted. The positions that the person held or holds must not be a hindrance in the course of justice. It however makes sense for Justice Balakrishnan to resign from the position of the Chairperson at the NHRC to ensure that all investigations into the allegations are conducted impartially.

The fact that the judge facing the accusation is currently the Chairperson of the NHRC has also implications for India in international forums like the United Nations. At the moment, the NHRC has an 'A' status as assessed and reviewed by the Sub Committee on Accreditation (SCA) of the International Coordinating Committee of National Institutions for the Promotion and Protection of Human Rights (ICC) at the UN. The case of the NHRC of Sri Lanka is proof to the fact that this status is not permanent and it could be degraded, an event that could cause international embarrassment to India.

The report of the UN Secretary General dated 15 January 2010 (A/HRC/13/44) to the General Assembly enumerates a series of programmes the UN and its allied organisations have implemented in cooperation with the NHRC in India. The NHRC is also an implementing entity for programmes sponsored by the UN, not only in India, but also in other countries as a consultant. The fact that such an NHRC has a Chairperson with a tainted image would not be a light burden for the government. In other words, the Chairperson of the NHRC cannot just sit idle and merely deny allegations but must do everything legally and ethically possible at his disposal to clear the name of the institution that he leads from the scandal.

It is trite to argue that the judges, irrespective of their stature and the jurisdiction they entertain, are holding public offices. Being a judge does not shield a person or the office the person holds from the constitutional, as well as commonsense requirement, to be transparent and accountable to the public. There is no justice that could be upheld beyond being honest to the people who entrust them the job, and the constitutional obligation that they have sworn to protect, promote and fulfil. In the same vein, there is no greater injustice than the resentment or reluctance to be transparent and constitutionally accountable while holding such offices and even worse to use the same constitution that entrusts them to do a public service as an excuse to prevent transparency and accountability while holding such an office. Perhaps it is also a rude reminder to the country that it is too late to re-examine the institutional structure of the Indian judiciary itself. It is time to stop the muffled and reined discussion on the subject and open it up for a larger debate, inviting everyone who is concerned about the integrity of the country's judiciary to participate and suggest means by which the lost confidence in the justice system of the country can be salvaged from the abyss into which it is plummeting rapidly.

Allowing for transparency and accountability on those terms is thus not an act of charity that anyone who holds a public office can deny at will. They form the cornerstones upon which a democratic state is built and the dream of every Indian is woven. Thus, destroying it would be worse than betraying the country.

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About the ALRC: The Asian Legal Resource Centre is an independent regional non-governmental organisation holding general consultative status with the Economic and Social Council of the United Nations. It is the sister organisation of the Asian Human Rights Commission. The Hong Kong-based group seeks to strengthen and encourage positive action on legal and human rights issues at the local and national levels throughout Asia.

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