CHIEF JUSTICE KG Balakrishnan had minced no words: “Constitutional functionaries are not covered under the RTI.” The RTI Act, therefore, was not applicable to his office. He had earlier ruled out any compulsory annual declaration of wealth by judges of the apex court and high courts.

Contrary to the sentiments of the chief justice, Prime Minister Manmohan Singh raised the alarm bells over judicial corruption at a conference of chief ministers and chief justices of high courts last month. “Corruption is another challenge we face both in government and the judiciary,” he said, stressing the need to “instil greater confidence in our justice delivery system”.

A similar concern over judicial accountability was shown by the Bar Council of India (BCI) when it initiated an all-India survey among lawyers in February to assess the legal community’s perception of issues ranging from transparency and performance of the judiciary to bar examinations.

The 36-question survey, sent to all state bar associations, asks lawyers to respond to such issues of judicial accountability as: whether corruption in the judiciary is growing, how can things be made fairer, should judges be hearing cases in which their relatives or the relatives of other judges are the lawyers, and so on. The man behind this novel initiative, former BCI chairman S. Gopakumaran Nair, explains, “We don’t have conclusive details about the status of the profession. By circulating a detailed questionnaire to lawyers, we can make an exhaustive assessment of the present state of affairs. If lawyers believe corruption is growing, this is their chance to come out with their views.”

With a string of judicial scandals having surfaced since the 1990s, the BCI’s intervention is opportune. The survey will give allegations of judicial impropriety a concrete shape. The BCI, however, clarifies that it does not want to presume anything. “If the study concludes that there is a general sense among lawyers of every state that corruption is growing, then we will publish it as a project report or research paper and bring it to the notice of judiciary,” Nair says. Respondents will be allowed to cite examples of corruption cases and furnish relevant supportive data, which may be included in the project report as illustrative cases. “This study will substantiate allegations, if there are any,” says Nair.

“It will be an eye-opener,” agrees the BCI’S current chairman, SPM Sinha. “Lawyers are complaining that some of the judicial officers are corrupt even in the high courts and the Supreme Court.” But the survey is confidential, how will it be an eye-opener? “We may make the data available to the public if the situation demands it,” Sinha says.

Repeated reminders are being sent to state bar associations to expedite this initiative. But the BCI has so far received no response. Among the lawyers in the high courts, however, there is an air of expectation. “This is a necessary step for having judicial accountability,” says Delhi High Court lawyer Mrinal Bharti. Senior lawyer at the Patna High Court, Basant Chaudhary, calls it long overdue.

While the Kashmir Bar Association has received copies of the survey, those of Tamil Nadu and Kerala have not. “The Bar Council can create an opinion and offer useful suggestions to the government,” says S. Prabakaran, president of the Tamil Nadu Advocates Association which is waiting to receive copies of the survey.

Agrees former chairman of the Press Council of India, Justice PB Sawant: “Whatever little mechanism there is, it is highly politicised” He says the issue of appointment of judges is the key to ensuring judicial accountability.

THOUGH THE Constitution does provide for accountability of judges at higher levels in the form of impeachment provisions, the reality has been far from satisfactory. Not a single judge has been impeached so far. There has been only one occasion when the impeachment of a higher judge, that of former Supreme Court Justice V. Ramaswamy in 1993, has been discussed in Parliament. Sawant says the impeachment was scuttled not by judges but by Parliament. “The judge’s son was a Congress MLA,” Sawant points out. Supreme Court lawyer Prashant Bhushan seconds that: “Ramaswamy’s case demonstrates that impeachment is not a practical way of dealing with judicial accountability.”

The Supreme Court provided an unambiguous answer to the question of judicial accountability when a seven-member constitutional bench under Justice JS Verma on May 6, 1997 unanimously adopted a resolution called the “restatement of the values of judicial life or the model code of conduct”. Declaration of assets was made mandatory for judges. An in-house mechanism to hold errant judges accountable was also called for.

That’s why Balakrishnan’s remarks have surprised Verma. “I am more inclined to believe that it was an off-the-cuff remark. He could not have been unaware of the Supreme Court ruling in the K. Veeraswamy case which declares that judges of the high courts and the Supreme Court are public servants.” Balakrishnan’s remarks have also irked former Supreme Court Justice VR Krishna Iyer. “Not only the declaration of assets but also an explanation for their increase should be made mandatory,” he says.

Investigating agencies are reluctant to approach any chief justice for permission to investigate a sitting judge, as required by the Veeraswamy judgment. “How would they have any evidence unless they investigate the judge?” asks Bhushan. In 2003, in the case of then Delhi High Court judge Shamit Mukherjee, the CBI found evidence by accident while investigating a case against DDA officials. When the CBI produced this evidence before the CJI, he confronted Mukherjee, who then resigned. The FIR was registered only afterwards.

“There is a fancy for affluence in the judiciary. The stern sense of duty is getting more and more eclipsed,” says Justice Iyer. Agrees Justice Sawant: “Every judge wants to protect himself from the pubic gaze. It is natural that judges will come together."

Sinha is waiting for a better response from the brother lawyers. He is still to decide whether to make the survey data public. Shivan Madathil, a Kerala High Court advocate, is optimistic. “Such initiatives would definitely clean up the system,” he says.

Will it?

Testing The Waters

The Bar Council survey has 36 questions. A few examples

• What is your assessment of the quality and performance of the judiciary in your state, particularly in the High Court?

• What are your views on the present mode of appointment to the higher judiciary? Is it fair and impartial? If not, what is your suggestion to make it transparent and fair?

• What is your view on judges sitting in the same court centre where their near relatives, like children, nephews, in-laws, etc are practising?

• What are your views on judicial corruption? Is it rampant in your state and if so, the remedies or solutions to be suggested.

• What are your views on the entry of foreign lawyers and law firms in your legal arena? Narrate briefly your reasons.

• Whether the quality, integrity and standard has deteriorated? If so, what are the suggestion for improvement?

• In view of the increasing interference and onslaughts on advocates’ professional freedom, do you think there should be an Advocates’ Protection Act (Central) on the mode of the Judges’ Protection Act?

• What is your assessment about the quality of the junior bar in your state? If it is deteriorating, what are the remedies or solutions suggested?

• What is your view on permission being granted to part-time jobs without affecting the court timings and the dignity of the profession?

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