Righting the scales

This opaqueness was compounded by a sense of double standards. The most glaringly obvious was the court’s insistence that while so many public officials were obliged to declare their assets, judges would declare them only to the chief justice. It is not clear what judges feared. That greater public exposure would open them up to undue harassment or that they would lose social legitimacy if the extent of even their legitimately acquired assets were revealed? Having asked others to do the same, judges were seen as trying to protect their own. And few had the courage to set a precedent by engaging in voluntary disclosures: this would have set a moral precedent that would have enhanced the judiciary’s reputation.

In scores of conversations over judicial accountability, I wish worries about high constitutional principle were the main axis of concern; rather the main concern became judges protecting their own. Winston Churchill had once warned that when there is a great clamour to have something done, something bad will be done. It is important that in the current clamour to hold judges accountable, we do not erode the independence of the judiciary. But first and foremost judges will have to shore up their authority by their own example.

Now take the recent matters at hand. Given ongoing investigations, it would be imprudent and impossible for anyone to pronounce on these cases. But the judiciary’s own handling has raised serious questions. The matter of impeachment of Justice Sen of the Calcutta High Court, for example, raises questions about the appointments process: these facts appear to have been known at various stages of his appointment. What internal protocols are there to assess relevant information about judges? The judge has refused to resign, and it may be that he has a plausible case for not doing so. In which case questions will be asked about the court’s process, and its authority will be jeopardised further. On the other hand if there is a sheer brazenness in the refusal to resign, then also it is not a good sign of things to come. We will have reached a point where shamelessness will undercut the discipline of any authority. Either way the stakes are very high for the Supreme Court.

In the Ghaziabad case, the judiciary ultimately had no choice but to allow the CBI to question judges. While the UP government has a lot to answer for, the Supreme Court’s own process and debates over who was or wasn’t qualified to hear the matter has left observers bewildered, to put it mildly. The Supreme Court has acted with unprecedented alacrity in the Punjab case, both sanctioning CBI questioning of the two judges and constituting a commission of inquiry. Under difficult circumstances this might have been the right thing to do. But the court is at the thin end of a wedge in this instance as well. For it is more than likely that the clamour to have more judges questioned by the CBI in other parts of the country will only grow. This will pose serious challenges for the judiciary. How will it signal to the larger public that its decisions to allow or disallow CBI questioning of judges are not arbitrary? It can no longer simply assume that its decisions will be taken to be credible without question.

There are lots of institutional innovations on the table to balance judicial accountability with judicial independence. But we are in a more disquieting position. We often assume that for every challenge there is a legal or institutional remedy. The court’s own powers were founded on this illusion. But there is only so much better rules or new institutions can do. Even the best of them cannot dispense with the need for virtue, and a sense of professional obligation that sets boundaries on what may be done. This illusion is enhanced by our attenuated social science vocabulary for inducing accountability. We think accountability is either induced by incentives or by sanctions. Both do have a role. But we delude ourselves if we think that rules, structures, incentives or methods of punishment can eliminate the need for integrity.

The larger story in the slow corrosion of our judiciary is not the need for new mechanisms of accountability. The larger story is that the real crisis of Indian democracy is unfolding not just at the level of the state, but at the level of civil society as well. Think, for instance, of the crisis of credibility in our major professions, law, medicine or education — a subject that deserves more attention. Faulty institutions can be corrected, but loss of integrity is more difficult to compensate for. When you need to use the rod, authority is already lost. The disfigurement of the judiciary is part of a larger story of the corrosion of professional ethics, a virtue that our instrumental culture thinks it can dispense with entirely.

The writer is president, Centre for Policy Research, Delhi

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