It is the first time ever that a Chief Justice of India has granted permission to an investigating agency to register a criminal case against members of the higher judiciary. It happened last week when Chief Justice K G Balakrishnan allowed the CBI to examine two judges of the Punjab and Haryana High Court, Nirmaljit Kaur and Nirmal Yadav, in connection with what has come to be known as the cash-for-judge scam.

In the process, Justice Balakrishnan earned the distinction of becoming the first CJI to exercise the power conferred on his office 17 years ago by an apex court verdict in the Justice K Veeraswami case. The rationale behind this special safeguard was to "protect a judge from frivolous prosecution and unnecessary harassment".

The 1991 Veeraswami verdict directed that "no criminal case shall be registered under Section 154 CrPC against a judge or chief justice of the high court or judge of the Supreme Court unless the Chief Justice of India is consulted in the matter ... If the Chief Justice is of the opinion that it is not a fit case for proceeding under the Act, the case shall not be registered."

On the face of it, this ruling, which confirmed that judges came under the ambit of the anti-corruption law, should have paved the way for the prosecution of recalcitrant ones. If Balakrishnan's permission to question Justices Kaur and Yadav has turned out to be unprecedented, it shows that successive CJIs, including himself, have belied the general expectation that they could be trusted to be objective in exercising their authority. So much so, that rather than being a safeguard to protect the independence of the judiciary, the self-assumed power of sanction became a cover for impunity.

One glaring example of inaction from the recent past relates to Justice Jagdish Bhalla who was not only shielded but also promoted as a high court chief justice despite an application for permission to register an FIR against him. The application, filed by the committee on judicial accountability consisting of eminent Supreme Court lawyers, cited a report from the Uttar Pradesh revenue department stating that a land mafia embroiled in litigation had sold Justice Bhalla's wife a 7,200 sq metre plot in Noida for no more than Rs 5 lakh. At the time, the market value of the plot was Rs 7 crore.

Such documentary evidence did not, however, stop the Supreme Court collegium from making an abortive attempt in 2006 to promote Bhalla as chief justice of the Kerala High Court. Since President Kalam threw a spanner in the works, the collegium waited for him to retire before making a fresh recommendation to promote Bhalla, this time as chief justice of the Himachal Pradesh High Court.

If the cash-for-judge scam has bucked the trend of denying sanction for investigation, it is perhaps because of the sheer drama that was involved in law officer Sanjeev Bansal sending Rs 15 lakh - in hard cash - to Justice Kaur's official bungalow. The case spiralled out of control and became very public as Justice Kaur immediately called the Chandigarh police and handed the money over. What added a comical touch was Bansal's claim that Justice Kaur had been mistaken for Justice Yadav as they shared a similar first name. It helped little that Bansal told the police that he had been asked by an absconding Delhi hotelier, Ravinder Singh, to send the cash to Justice Yadav in connection with
a property deal.

Whoever it was meant for, the sleaze money seems to have pushed Justice Balakrishnan to grant permission within a week of CBI's plea to question both judges figuring in the Chandigarh transaction. In the absence of any such cash recovery, the UP police failed to get similar permission from the CJI for a contemporaneous but even larger case. This is the Ghaziabad provident fund scam, involving 34 judges all the way from the Supreme Court to subordinate courts. The scam,
involving misappropriation of Rs 23 crore from the PF of Class III and Class IV employees, hinges on the confessional statement of a Ghaziabad court official, Ashutosh Asthana. He claims that he used that money to buy expensive gifts for judges.

When the UP police asked for permission to question the judges named by Asthana, all that they got from Justice Balakrishnan was clearance to send questionnaires. This, despite the fact that the Ghaziabad scam complies with the Veeraswami verdict's precondition - that the investigation of a judge can only be permitted when a prima facie case is made out against him. Besides Asthana's confessional statement, the police were equipped with documentary evidence in the form of vouchers and delivery receipts.

In a further concession to the judges figuring in the Ghaziabad scam, the CJI directed the police to attach the evidence to the questionnaires they send. In the pre-trial stage of investigation, the police are normally entitled to subject the accused to oral interrogation without disclosing the evidence they have already collected. While the outcome of such a heavily fettered investigation is not yet known, there was a cheering development in the Ghaziabad case last week.

With the UP police conceding they were finding it hard to cope with the sensitive task of investigating local judges, the Supreme Court leaned on the state government to consider handing the case over to the CBI. The Mayawati administration promptly obliged and an agency that is better equipped to deal with the wider ramifications is now set to take over the case.

In a week that saw major developments in the judicial corruption cases from Chandigarh and Ghaziabad, there was an equally significant piece of news about a third case. In a letter to Prime Minister Manmohan Singh, the CJI asked for the impeachment of Calcutta High Court judge Soumitra Sen on the basis of his indictment by an in-house procedure of inquiry. Law minister H R Bhardwaj announced that the impeachment process would soon be initiated in Parliament. This is yet again a first, though the in-house procedure to probe allegations of judicial corruption has existed since 1997. Never before has a judge been impeached or even sought to be impeached following inquiry by a committee comprising three judges from different high courts, two of whom must be chief justices.

Curiously, this is also the first time that the in-house procedure has indicted a judge on the very issue on which he had been given a clean chit by a high court. Last year, a two-member bench of the Calcutta High Court expunged the strictures passed by a single judge who had held Justice Sen guilty of misappropriating the sale proceeds of certain goods. These had been given to him for safekeeping when Justice Sen had been the receiver in a high-stakes case in his former avatar as a lawyer. Though Justice Balakrishnan's letter to the PM mentions Sen's eventual exoneration by his own high court, it is silent on how the in-house inquiry came to a different conclusion.

Justice Sen's case also exposes the link between judicial misconduct and a flawed system of appointments. It became more secretive after 1993 when the judiciary appropriated the selection process. When Sen was appointed to the high court in December 2003, he was already facing proceedings in the same court on the charge of misappropriation. Which is why it is strange that the chief justice of the Calcutta High Court still thought it fit to recommend his appointment. Having read the CJI's recommendation to impeach Sen, Manmohan Singh hit the nail on the head when he said last week that the spate of corruption allegations against judges calls for "introspection" on judicial appointments. Their Lordships would do well to read the writing on the wall.

This Bill lacks will
When Prime Minister Manmohan Singh said last week that the spate of judicial corruption cases called for "introspection" on appointments, he was, perhaps unwittingly, taking the side of a parliamentary standing committee in its debate with law minister H R Bhardwaj. For, the standing committee, headed by Congress MP Sudarsana Natchiappan, debunked Bhardwaj's piecemeal approach of enacting a judicial accountability law without addressing the problems with the appointment system itself.

All that the Judges (Inquiry) Bill introduced by Bhardwaj two years ago does is to provide statutory teeth to the judiciary's controversial "in-house procedure of inquiry". By proposing a National Judicial Council consisting only of serving judges, Bhardwaj has bought into the judiciary's claim that any attempt to open up the process of judicial accountability would compromise judicial independence. This despite a breakthrough made by his predecessor Arun Jaitley in 2003, in the aftermath of a sex scam that led to the resignation of Delhi High Court judge Shamit Mukherjee. Jaitley came up with a constitutional amendment Bill that sought to involve non-judicial members not only in the appointment of judges but also in disciplining them.

Since the 2003 Bill seeking to establish a National Judicial Commission lapsed the following year with the dissolution of the 13th Lok Sabha, Bhardwaj had an opportunity to improve on it. However, the council envisaged by his 2006 Bill rolled back the reform of involving other stakeholders. Worse, since it limits itself to the issue of accountability, Bhardwaj's Bill misses out on the fact that many of the corruption scandals could be traced to the secretive process of appointing judges.

The Bill has been on hold ever since the standing committee recommended in August 2007 that it should also deal with appointments and restore the pre-1993 situation when the issue was not considered an internal affair of the judiciary. As for accountability, the committee suggested that complaints against judges should first be screened by an empowered body consisting of nominees of the PM, CJI, Bar Council and the two Houses of Parliament.

Bhardwaj's cosy arrangement with the judiciary has been disrupted by a chain of events triggered by Justice Soumitra Sen's refusal to resign. Taking the cue from the PM's advice for "introspection", Bhardwaj would do well to enlarge the ambit of the Bill taking cognisance of the link between the appointment system and the integrity of the judiciary.

UK trusts laypersons

Usha Prashar isn't just one more member of the great Indian diaspora. The function she performs in Britain would be considered sacrilegious in India. Though she is neither a judge nor even a lawyer, Prashar is the chairman of the judicial appointments commission (JAC), which selects candidates for judicial office. While this responsibility is entrusted in India only to senior judges, Prashar has been specially drafted into the process because British law requires the JAC chairman to be a lay person.

Though India inherited its legal system from the British Raj, the two countries could not have been more different in their attitude to the judiciary even as both swear by its independence. In India, the judges have, after a 1993 judgment by the Supreme Court, made themselves a self-perpetuating oligarchy as they assumed "primacy" in judicial appointments. On the issue of accountability, the Supreme Court first ruled in 1991 that no criminal case could be registered against a judge without the CJI's approval. And then, in 1997, it put in place what is purely an "in-house procedure of inquiry" to deal with complaints against members of the higher judiciary.

In contrast, Britain has demystified the judiciary to such an extent that even the scrutiny of judicial conduct has been handed over to a lay person. The one who is currently the "judicial appointments and conduct ombudsman" is a retired naval officer, John Brigstocke, whose legal experience is limited to departmental inquiries. Yet, he now has statutory powers to investigate complaints about appointment of judges and matters involving judicial discipline.

Thanks to such transparency, Britain has been able to stave off the kind of predicament that India finds itself in because of Justice Soumitra Sen's refusal to resign from the Calcutta High Court. Given the elaborate safeguards, there is no way somebody like Sen could have been cleared for appointment, even after a litigant had filed a case before the same court accusing him of misappropriating money as a receiver in an earlier case. If a collegium of judges could select Sen in 2003 despite a question mark over his integrity, it shows that the privilege of secrecy conferred on the judiciary is being misused, much to the detriment of the public interest. India could do with more lessons from Britain on the rule of law.