At Stake, Your Honour

The Long List of Misdemeanours

• Family members of Justice K.G. Balakrishnan grow rich by crores during his tenure as the Chief Justice of India from Jan 2007 to May 2010.
• Elder son-in-law P.V. Sreenijan (pic), landless and worth Rs 25,000, amasses wealth estimated at more than Rs 10 crore in just two years. Younger son-in-law M.J. Benny buys property worth Rs 81.5 lakh in Kochi.
• Brother K.G. Bhaskaran, forced to go on leave from his post as special government pleader, acquires a 56-acre farmhouse in TN.
• Balakrishnan’s nephew Abhilash, once a clerk with Kerala State Financial Enterprises, opens multiple-crore Vyga Animation Systems Pvt Ltd and two other IT firms at Technopark. He allegedly runs benami jewellery shops and hotels in the country and abroad.
• Former Independent MP Sebastian Paul alleges that Sreenijan and Bhaskaran struck deals for favourable verdicts and judicial postings with clients at a 5-star hotel in Kochi. Many knew about the clandestine deals but kept quiet for fear of contempt.
• Justice Krishna Iyer says a former Kerala High Court judge had requested him not to write to the PM on Balakrishnan’s kin owning assets more than disclosed known sources of income. Iyer refused. But he also refused to name the judge who approached him.

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One man, however, has now taken up the cudgels on behalf of the judiciary’s founding ideals. No less than former Supreme Court judge Justice V. Krishna Iyer, a jurist of unimpeachable integrity, is spearheading the call for former Chief Justice of India K.G. Balakrishnan to step down as chairman of the National Human Rights Commission following revelations about his sons-in-law and brother having amassed wealth far beyond their means of income during his tenure as CJI (see box). While Kerala chief minister V.S. Achuthanandan has ordered an investigation, the spotlight has once again turned to the process of appointment of judges to the apex court.

In theory, the procedure for naming the CJI is transparent enough: the seniormost among the judges (seniority being defined in terms of the number of years a judge has put in at the Supreme Court) gets to occupy the high office. The problem is with judges with a questionable record making it to the Supreme Court. Points out former CJI M.N. Venkatachaliah, “There are just 25 judges in the Supreme Court in a country with a population of a billion-plus. And even there, some of them turn out corrupt.” And should one of them emerge as the seniormost, then you have a CJI of questionable integrity. “The most heinous crime,” adds Justice Venkatachaliah, “is the CJI incurring criticism, or giving room for doubts that his hands are dirty.”

The responsibility of acting on “corrupt” judges rests solely with the CJI. But how many have actually initiated inquiry proceedings against brother judges? Following a historic judgement in 1993, the power of appointing Supreme Court judges was left to a collegium of five judges of the apex court in consultation with the CJI. But in the case of a questionable appointment, has the government ever taken its own view on the matter?

So, how does one make corrupt judges accountable? Back in 2002, Venkatachaliah had submitted a report on the review of the Constitution, suggesting a National Judicial Commission comprising not only the legal fraternity but also the executive to be empowered to look into deviant judges. “If in UK every process involved in the selection of judges is recorded and made public, why can’t that practice be followed here?” he asks.

Agreeing with him is former CJI J.S. Verma who had to wait for years to head the apex court. He says he had way back in 2005 suggested to Prime Minister Manmohan Singh that the process of appointing judges be made public. “Every correspondence must be made public so that the CJI can be made accountable for the choice made.” Verma is, however, silent on what transpired between him and the executive on the fate of (then seniormost) judge M.M. Punchhi against whom impeachment was initiated but which eventually fell through.

Verma had apparently sounded out both the PM and the President on his successor, according to reliable sources, after he received complaints in a detailed note prepared by the Committee of Judicial Accountability represented by legal luminaries. Ideally, the chief justice could have initiated investigations under Section 154 of the Criminal Procedure Code which clearly states that inquiries can begin if there is reasonable ground to suspect the commission of crime after the CJI  has apprised the executive. However, Punchhi went on to succeed him as the CJI. Perhaps because Verma was the outgoing CJI and other factors like political unwillingness, there was a collective inertia at that time. Interestingly, lawyers point out, nothing is publicly known about CJI Y.K. Sabharwal’s assessment of his successor, Balakrishnan.

It’s because of this secrecy that surrounds the appointment of senior judges and the sheer complexity of the manner of removing judges that senior advocate Kamini Jaiswal says an acute need is being felt for a statutory body of integrity to look into the appointment and removal of judges. “A separate investigative agency is required, which can come about only by a constitutional amendment to look into charges of corruption against judges,” she says.

Says former Delhi High Court chief justice A.P. Shah, who missed out on serving in the SC for reasons best known to the collegium, “The entire process of appointment to the Supreme Court needs to be looked into.” In a paper on judicial accountability, he writes, “Our current appointments system is out of step with democratic culture primarily because it lacks transparency, and provides for no oversight. Choosing judges based on undisclosed criterion in largely unknown circumstances reflects an increasing democratic deficit. International consensus seems to favour appointments to the higher judiciary through an independent commission.”

Almost everyone agrees that the collegium system of appointing judges to the apex court has failed because it has not entirely succeeded in ensuring that only judges of unquestionable integrity are promoted to the apex court. As for the removal of corrupt judges, Jaiswal aptly sums it up when she says “almost everyone in the political establishment has some case pending in the court.” Who then is going to clean the stable?

While changing the system and making it transparent has been strongly recommended, there’s also the fear that change could leave the door open for the executive to step in. That, they say, would be a throwback to the pre-1993 scenario when supercessions were not uncommon and appointments were arbitrary. Perhaps transparency can only come if the judiciary and the executive work towards a common and positive goal.