Burning Cash, Burning Question

medium119487199It’s a case that’s set the bar, the country and even Parliament abuzz. Starting with Friday morning, when TOI reported that Delhi Police had recovered “a huge pile of cash” from the residence of Justice Yashwant Varma. Later reports suggested that “jute sacks full of cash” were found “stashed in a corner of the outhouse” of the residence.SC collegium has recommended Justice Varma be repatriated from Delhi HC to his parent high court, of Allahabad. The Allahabad HC Bar Association came out with an unusually strong statement, declaring they were “not a trash bin”. Meanwhile the Supreme Court, in a nondescript press note, said that there was misinformation going around, even as it admitted to initiating an in-house inquiry.We do not wish to enter the debates about the specifics of the case but to respond to certain concerns. TMC MP Mahua Moitra has suggested in Lok Sabha that the current uproar is “an effort to bring back NJAC”. And Congress MP Jairam Ramesh has raised the issue of judicial accountability in Rajya Sabha. In this context, we write to caution Parliament and opposition — tread carefully with the debate of judicial corruption, for a free and independent judiciary is all that stands between fundamental rights and an elected autocracy.There are rhetorical passages in several judgments of the Supreme Court about what qualities a judge ought to possess, and by implication, all sitting judges possess said values. Constitutional scholar HM Seervai has summed up this discussion of values the best. In the third edition of his tome Constitutional Law of India he writes that this “is not justified by the materials on record”.But one must be clear — judicial accountability must come from the judiciary itself and not from political players. Otherwise, we risk independent judges being targeted. Is the in-house procedure perfect? Perhaps not. But it is also the best that we have.We have argued elsewhere that certain forms of corruption such as financial corruption attract more disgust than other forms like ideological impropriety. Justice Varma has received far more whiplash than Abhijit Gangopadhyay who while a sitting judge of Calcutta HC resigned and contested a Lok Sabha seat on a BJP ticket.While the Allahabad HC Bar Association has passed a resolution calling for the impeachment of Justice Varma, it has failed to pass similar resolutions for Justice Shekhar Yadav who used “unpardonable” slurs against Muslims on HC premises.We hold no brief for Justice Varma but only call for a more nuanced dialogue. We also do not doubt that the slightest hint of corruption casts a long shadow on public trust in the judicial process, and thus, there is a need for reforms. The question that must then be answered is, what should such reforms for judicial accountability look like?The impeachment process has fallen short and is inherently a political process. It is also reserved for perhaps the most deviant of our judges. A middle path could begin with the mandatory public disclosure of the income of each judge, along with explicit disclosures of financial, professional and personal conflicts of interests.Further, a judicial ombudsman needs to be created in line with the Judicial Standards and Accountability Bill, 2010. The oversight committee, complaints scrutiny committee, and investigative committee recommended by the standing committee for the bill, chaired by Abhishek Manu Singhvi, might be necessary as well.All cases may not warrant a removal. Transfers may not be sufficient in some cases and in others they may not be warranted. A public reprimand to a judge and/or an apology by the judge are intermediate solutions that Parliament must look into as well.An unaccountable judiciary would spell disaster. On the other hand, there is a clear and imminent danger to judicial independence, with several voices jumping the gun and expecting instant justice, egged on by loudmouth primetime anchors or social media influencers. That cannot be the solution either.What’s needed is judicial accountability alongside fierce protection of judicial independence. For this, to repeat, accountability has to come from within the institution, rather than from an executive-controlled legislature, which has a lot to gain from a compromised judiciary.We already have the executive interfering with justice administration by exercising a pocket veto in judicial appointments. Any further interference in the administration of justice would be disastrous.Along with rigorous investigation and disciplinary mechanisms, rooted in impartial legislations, the apex court also has to work on how a lay Indian — with no training or initiation in law — views our judicial system. Whether it is the latest case, or other sensational bits reported about our courts from time to time, public faith in the judicial process hangs in the balance. To improve how common people perceive the legal system, courts have to open their doors to the public like never before.The lack of redressal of bona fide complaints about judicial corruption has led to a situation where faith in the system is visibly eroding. Judicial independence cannot also become a tool for judicial misbehaviour, as it has been perceived to be in the past with Justice Soumitra Sen, to take just one example.We end with the hope that Parliament treads with moderation, and with the words of Justice Albie Sachs of the South African constitutional court, “If respect for judiciary is to be regarded as integral to maintenance of the rule of law…such respect will be spontaneous, enduring and real to the degree that it is earned rather to the extent that it is commanded.”The writers are advocates, Supreme Court