INDIA: Challenging fundamentals
The Chief Minister of West Bengal is once again in the news. This time the minister is critiqued for her comments on judicial corruption. However, if truth is the best defence, and if such a defence is bona fide, then in public interest none can blame the minister for her 'expressing opinion.' In fact, it is the constitutional duty of India's justice apparatus to protect every citizen wanting to exercise their right to free and just opinion.
What is astonishing, however, is the degree to which those who are privileged to access information resent an obvious truth. That the country's judiciary is corrupt is a no-brainer fact. Of the several important pieces of information in this regard is the detailed affidavit that is on records of the Supreme Court of India, filed by a well-respected lawyer in the country where instances that could be clearly attributed as acts of corruption are enumerated, involving a substantial number of former chief justices of the country. In this affidavit, the lawyer has, in no uncertain terms, emphasised that, on more than one occasion, the entire Bar has spoken openly about corruption in the judiciary, and that they continue to do so, since there are members of the Bar who benefit their clients, and in the process themselves, exploiting corrupt judges. Former judges themselves have spoken about corruption in the judiciary.
There is no doubt in the fact that a substantial number of ordinary people have lost faith in the country's justice apparatus, of which the judges are an integral part. The Indian judiciary has no independent existence isolated from the investigative and prosecutorial limbs of the justice institutions and indeed the Bar. There would be no defence from any quarters should anyone highlight the fact that the prosecutors and investigators are a corrupt lot in India. The judges being corrupt is only a natural corollary of the larger picture, an argument that could be made either way, to argue further that had the judiciary been not corrupt it could have prevented corruption in the other two limbs of the justice apparatus to a considerable extent.
To reiterate, anyone who has interacted with the country's courts, knows how corrupt the court officers are. The entire registry is corrupt to the extent that, today, a petition requiring a court-fee stamp below Rupees ten, by the time it is called at the Bench, costs at least Rupees thousand or more, paid as bribes at each desk at the registry. Most of the bench clerks, who sit right under the nose of the judge, refuse to call the case during the roll call, if the clerk is not bribed. Bail orders are not typed and delivered if everyone from the steno to the registrar is not bribed. A summons is not served if the process server or the police officer is not paid. If paid properly, one can also get the process served, without the process not leaving the court and one may easily obtain a warrant, or an ex-parte order, or worse, a decree. A certified copy of the judgment or order from the lower court will not be issued, even if it is listed as ready for delivery at the notice board of the courts without the officers in the copying section paid their 'due.'
During trial, witnesses can be bought and prosecutors manipulated to sabotage the trial process. Documents can appear and disappear from court records at will, for those who can and cannot afford to pay. Cases can be delayed, or the entire case file be made to go ‘missing’ so that adjudication is prolonged by decades. Long delay in adjudication and the banality of it is not only a factor that promotes corruption, but is, in fact, a distinct form of corruption.
Magistrates, most of them, right from those who are stationed at the national capital to those serving in the far and remote corners of the country, extend remands or deal with criminal cases without having the accused in the dock. In many magistrate and sessions' courts remand, bail and other interlocutory orders are written by police officers and not by judicial officers. Even many of the country's legislations are the product of corruption. This is the market place into which the country's courts and the entire justice process have reduced. A judgment that is the final product of so many corrupt processes to be devoid of corruption that precedes it is like expecting pumpkin to grow out of watermelon seeds.
Indeed, many of these defects are the result of wide-ranging apathy that the justice institutions in India suffer, including, but not limited to, lack of resources, lack of training, and the non-accountability of the judges. None of these have attracted the wrath of those who condemn everyone who speaks the obvious. Those who award percentages to judicial corruption have failed to understand and appreciate the fundamental notion of justice and the role judges play in the process of delivering justice.
Justice process can only be either hundred percent not corrupt, or corrupt.
Those jurists, who believe that their judiciary is fine, even though some judges are corrupt, would find it completely acceptable to inform litigants that even though their cause is justiciable, justice cannot be expected since the judge is corrupt. These jurists lack basic quality to be a student of jurisprudence since they are in fact brokers in pursuit of profit, unqualified to be engaged in the pursuit of justice.
The jurists, who believe that the Indian judiciary, the way it exists today, is acceptable, are living a pretence that they profess to be true. Many jurists in India live this pretence. The country's media have largely paid lip service to these pretentious deceptions. The judiciary, invoking one of the most misused of its powers - the contempt of court proceedings - has promptly punished those who refused to fall in line.
A judiciary shows its maturity and proximity to justice by accepting criticism and encouraging it. The test must be whether the criticism is just or unjust. Refusal, by the judiciary, to end corruption within its rank and file, has resulted in people losing faith in the institution. The rank insensitivity, in attempting to punish anyone who has thus far exposed corruption in the judiciary, has only resulted in further exposing the lack of understanding of the country's judges about the role they are expected to play in a mature democracy.
Public opinions help refine institutions, and the judiciary is no exception. However, the Indian judiciary has so far proved to be an immature and dishonest entity, as it has failed to accept criticism and introspect.
It is an institution that preaches rights that it doesn't believe should be enforced in practice.
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