Everybody agrees that judgments, and accompanying interim orders, should not be sold and bought for a price. But other surrounding concepts await deeper analysis.
Not much has been written by way of scrupulous scientific research about judicial corruptibility, but much has been said about it. Several chief justices of India (CJI), incumbent justices, and superannuated justices have lamented the fact that the widespread systematic governance corruptibility has resulted in discrete acts of judicial corruption.
The narrative basically, even now, remains deeply hierarchical. It is heavily focussed on the district judiciary: Retired CJI V.N. Khare said in an interview that “corruption in lower courts is no secret”, and recommended a team of “dedicated judges” (mostly retired) to monitor and arrest its further spread. The second narrative suggests that the “rot” may have reached some high courts; and the origins of transfer of judges as a national policy lay firmly located in this narrative.
The third narrative suggests that acts of corruption have reached even the shores of the Supreme Court. Shanti Bhushan (and Prashant Bhushan) created a perfect moral storm in 2010 by naming eight CJI among 16 justices who were allegedly corrupt. He gave the names in a sealed envelope to the Supreme Court and even dared it to prosecute them for contempt! And this narrative was embellished by the irrepressible Justice Markandey Katju, as late as 2015, to morally impeach many justices in “higher courts”.
The trouble with all these narratives is they are many sided. One, the allegation of corruption is rather easily made but is very difficult to substantiate. Trading in suspicion and even slander, is different from establishing guilt beyond a reasonable doubt. Second, allegations are mainly anecdotal and emerge from the Bar grapevine; the Bar’s passion and penchant for telling stories is well known. Gossip of today (as Michel Foucault once remarked) becomes the truth of tomorrow; and grapevine constitutes the rule and often assumes the visage of public truth. Third, “corruption” is hardly conceptualised.
Everybody agrees that judgments, and accompanying interim orders, should not be sold and bought for a price. But other surrounding concepts await deeper analysis. Is “son stroke” (where near relatives of a sitting judge practice in the same jurisdiction) a corrupt act? Do always buying of land and property by close relations of a judge evidence judicial corruption? What if a judge’s spouse is an independent professional or otherwise lucratively employed? Is a membership by incumbent justices of retired justices housing society a corrupt act? Does an informal agreement to head a statutory body or a commission prior, or on the eve of retirement, amount to corruption? Should past association with a firm of lawyers, or an individual counsel, be regarded retrospectively as a potentially corrupt act or at least a ground of judicial transfer? And, how is any appellate justice to be adjudged as performing a corrupt act under the recent NJAC judgment, which suggests Third Schedule (oath of office) obligation not to recuse? How is one to describe the varieties of judicial “misconduct” as different from impeachable offences?
Careful writing will draw some bright lines between corruptibility in general and specific acts of corruption, or folklore of corruptibility and the fact (actual incidence) of judicial corruption. There is thus a distinction between (as philosopher Seyla Benhabib counselled) “generalised” and the “concrete” other. Even as a folklore grows, facts are hard to come by or establish. The folklore matters as an “evidence” of widespread popular belief about judicial governance corruption. The dominant judicial narrative accentuates contempt jurisprudence, lest popular mistrust may grow and generate collective disobedience of court’s orders, and directions. But too frequent activation, or deployment, of contempt powers may also produce a chilling effect on freedom of speech and expression and of the media freedom to report.
The constitutional courts in India remain confronted by a democratic dilemma; they have tried to walk a fine balance but the belief in contempt power is so strong that media stories are routinely killed in the apprehension of protracted judicial proceedings.
The Supreme Court of India breathes a fresh air when it virtually quashes the contempt action against Transparency International and the Centre of Media Studies. It rightly remarked that such surveys “instead gave opportunity to address the malady in the system”. A bench led by Chief Justice of India J.S. Khehar (comprising also Justices D.Y. Chandrachud and Sanjay K. Kaul) said the law of contempt would not “ordinarily” extend to interview and compilation concerning corrupt judicial practises (such as bribing and exercising influence). “Where will research go if this is contempt?” asked the Court.
This is welcome relief, but we must, however, note that it came after a 11-year wait! The learned CJI, around the same time, suggested a “mechanism” for taking a “second call” on government litigation. His Lordship estimated thus a 10 per cent case-load reduction. Of course, there is some linkage between the oft-noted judicial governance corruptibility and workload delays, providing a further argument for urgency of judicial appointments and elevation.
Judicial corruption (in the strict sense of buying and selling orders and judgments) is a serious menace to basic individual freedoms. It is also inimical to judicial independence and to the constitutionally desired social order. The constitutional process for the removal of justices need not be politically cumbersome, if a constitutionally sincere approach were to prevail. And this is one constitutional process that may not belong rightfully to the judiciary, lest it prove contrary to the rule of law maxim: No person shall be a judge in her own cause.
Justice K. Ramaswamy said wisely and well, as far back as 1995, that “criticism of a judge’s conduct or of the conduct of a court even if strongly worded, is, however, not contempt,” if it is “fair, temperate and made in good faith and is not directed to the personal character of a judge or to the impartiality of a judge or court”. And we may do no better than to adhere to this constitutional prescription.
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Steve Ovett, the famous British middle-distance athlete, won the 800-metres gold medal at the Moscow Olympics of 1980. Just a few days later, he was about to win a 5,000-metres race at London’s Crystal Palace. Known for his burst of acceleration on the home stretch, he had supreme confidence in his ability to out-sprint rivals. With the final 100 metres remaining,
[wptelegram-join-channel link=”https://t.me/s/upsctree” text=”Join @upsctree on Telegram”]Ovett waved to the crowd and raised a hand in triumph. But he had celebrated a bit too early. At the finishing line, Ireland’s John Treacy edged past Ovett. For those few moments, Ovett had lost his sense of reality and ignored the possibility of a negative event.
This analogy works well for the India story and our policy failures , including during the ongoing covid pandemic. While we have never been as well prepared or had significant successes in terms of growth stability as Ovett did in his illustrious running career, we tend to celebrate too early. Indeed, we have done so many times before.
It is as if we’re convinced that India is destined for greater heights, come what may, and so we never run through the finish line. Do we and our policymakers suffer from a collective optimism bias, which, as the Nobel Prize winner Daniel Kahneman once wrote, “may well be the most significant of the cognitive biases”? The optimism bias arises from mistaken beliefs which form expectations that are better than the reality. It makes us underestimate chances of a negative outcome and ignore warnings repeatedly.
The Indian economy had a dream run for five years from 2003-04 to 2007-08, with an average annual growth rate of around 9%. Many believed that India was on its way to clocking consistent double-digit growth and comparisons with China were rife. It was conveniently overlooked that this output expansion had come mainly came from a few sectors: automobiles, telecom and business services.
Indians were made to believe that we could sprint without high-quality education, healthcare, infrastructure or banking sectors, which form the backbone of any stable economy. The plan was to build them as we went along, but then in the euphoria of short-term success, it got lost.
India’s exports of goods grew from $20 billion in 1990-91 to over $310 billion in 2019-20. Looking at these absolute figures it would seem as if India has arrived on the world stage. However, India’s share of global trade has moved up only marginally. Even now, the country accounts for less than 2% of the world’s goods exports.
More importantly, hidden behind this performance was the role played by one sector that should have never made it to India’s list of exports—refined petroleum. The share of refined petroleum exports in India’s goods exports increased from 1.4% in 1996-97 to over 18% in 2011-12.
An import-intensive sector with low labour intensity, exports of refined petroleum zoomed because of the then policy regime of a retail price ceiling on petroleum products in the domestic market. While we have done well in the export of services, our share is still less than 4% of world exports.
India seemed to emerge from the 2008 global financial crisis relatively unscathed. But, a temporary demand push had played a role in the revival—the incomes of many households, both rural and urban, had shot up. Fiscal stimulus to the rural economy and implementation of the Sixth Pay Commission scales had led to the salaries of around 20% of organized-sector employees jumping up. We celebrated, but once again, neither did we resolve the crisis brewing elsewhere in India’s banking sector, nor did we improve our capacity for healthcare or quality education.
Employment saw little economy-wide growth in our boom years. Manufacturing jobs, if anything, shrank. But we continued to celebrate. Youth flocked to low-productivity service-sector jobs, such as those in hotels and restaurants, security and other services. The dependence on such jobs on one hand and high-skilled services on the other was bound to make Indian society more unequal.
And then, there is agriculture, an elephant in the room. If and when farm-sector reforms get implemented, celebrations would once again be premature. The vast majority of India’s farmers have small plots of land, and though these farms are at least as productive as larger ones, net absolute incomes from small plots can only be meagre.
A further rise in farm productivity and consequent increase in supply, if not matched by a demand rise, especially with access to export markets, would result in downward pressure on market prices for farm produce and a further decline in the net incomes of small farmers.
We should learn from what John Treacy did right. He didn’t give up, and pushed for the finish line like it was his only chance at winning. Treacy had years of long-distance practice. The same goes for our economy. A long grind is required to build up its base before we can win and celebrate. And Ovett did not blame anyone for his loss. We play the blame game. Everyone else, right from China and the US to ‘greedy corporates’, seems to be responsible for our failures.
We have lowered absolute poverty levels and had technology-based successes like Aadhaar and digital access to public services. But there are no short cuts to good quality and adequate healthcare and education services. We must remain optimistic but stay firmly away from the optimism bias.
In the end, it is not about how we start, but how we finish. The disastrous second wave of covid and our inability to manage it is a ghastly reminder of this fact.