A disproportionate burden of the responsibility falls on the judges who are functioning tirelessly and with integrity with the intent of providing impartial and adequate dispensation of justice. It is unacceptable that the burden of an avoidable additional workload is imposed by the judiciary itself, and the cost and effects of litigation fall on the litigant who is in genuine need of access to true justice.
The courts in India are required to maintain standards that every reasonable and impartial person would readily recognize its sufficiency in the dispensation of justice.
Oppenheim’s International Law (Peace) Vol. 1, 9th Edn., 2008 observes that when court proceedings suffer from serious inadequacies in the administration of justice both procedural and substantive, or, if there occurs an obvious and malicious act of misapplication of the law which is injurious to a litigant, it will amount to a denial of justice. If the error is not remedied on appeal and if the result is so manifestly unjust so as to offend against the standards of justice recognized by civilized nations, the conduct of its judicial organs would be attributed to the nation-state and thereby trigger state responsibility under international law.
Data on perceptions about the judiciary by the Indian public
Transparency International (Cambridge) in its 2007 report on corruption in judicial systems, which was largely funded by Germany, notes that 77% of Indians surveyed and 55% of Pakistanis describe their judicial systems as corrupt. The estimated amount paid in bribes in a 12-month period was Rs. 2,600 crores (2005). Bribe money was paid in the following proportions: to lawyers (60%), to court officials (30%), to judges (5%), and to middlemen (5%). Therefore, an estimated Rs.1,800 crores of bribe money is reportedly paid to the lawyers, judges and middlemen combined, to influence the outcome of judicial decisions.
In its 2018 report, Transparency International ranks India at 78 out of 180 countries in terms of its Corruption Perceptions Index, with India scoring 41 out of 100. A country’s score reflects the perceived level of public sector corruption on a scale of 0 to 100, with zero being most corrupt and 100 reflecting clean governance. 41% of Indians believe that corruption had increased over the previous year. 63% of Indians answered in the affirmative to the question “can ordinary people make a difference in the fight against corruption?”
Regarding the most effective action against corruption, 22% indicate that corruption should be reported, and 21%
recommended refusing to pay bribes. 36% said that they do not report corruption because they are afraid of the consequences. India had the highest bribery rate of all the countries surveyed, with nearly 7 in 10 people who had accessed public services having paid a bribe. The 2018 report observes that up to 45% of service users in the courts of India had paid bribes in the past 12 months.
The Centre for Media Studies (CMS) – India, Corruption Study 2018 (2005 to 2018: How well are states placed?) notes in its report that the judiciary, police and land records/housing continue to remain as the infamous top three as far as perception about the level of corruption in availing public services.
Two randomly selected cases for review by the practitioner of the law
The following illustration of leading cases would pique the interest of the reasonable person, which demonstrate the questionable functioning of the Indian judiciary. In O.S. 804/2008 filed at the district court at Coimbatore in Tamil Nadu concerned revocation of an alleged gift of movables consisting of bank deposits, company shares, etc. by a daughter to her elderly father when the latter held her general power of attorney which was a fiduciary relationship. The alleged act of gift included all the movables of the donor worth crores of rupees leaving nothing for herself and her daughter. The donee is an aged wealthy father. The trial court judge C. Ramamurthi opined in his judgment that it was a partition suit amongst the father and his two offsprings. Whereas, nowhere in the plaint was there a prayer for partition. Upon appeal to the high court of Madras, by the plaintiff in A.S. 573/2011, it was brought to the attention of the bench that the pleadings of the donee/respondent/defendant were that the gift was for consideration, that the act of gifting was not voluntary and there was no delivery or completion of formalities for the transfer of most of the items of gift. Section 58 of the Evidence Act, 1872 states that admissions in pleadings need not be proved. The Act also shifts the burden of proof to the donee of proving the good faith of a transaction who is in a position of active confidence or dominating influence such as a fiduciary. However, Justices R. Subbiah and Jagadish Chandira on the division bench found that neither the pleadings that conclusively determine the void/voidable nature of the gift, nor the fiduciary nature of the relationship had any bearing on the act of gift. This per incuriam decision was unremarkably upheld at the Supreme Court by Justices Ranjan Gogoi, R. Banumathi and Navin Sinha who found no reason to interfere with the lower courts. Gogoi remarked “This is a case against a father … no.” Sinha remarked “She has revoked a power of attorney after 20 years”. The foregoing case illustrates how the judiciary itself contributes to the backlog of 3.5 crore cases, without access to true justice.
Another example concerns a breach of trust petition filed under S. 92 of the Civil Procedure Code by public petitioners in O.S.C.F.R. 26110/2011 in Coimbatore, against the trustees and others in respect of malfeasance in a public charitable trust. Despite the passage of 8 years since the date of filing, the petition which was heard sufficiently before a number of judges some of whom who found their way to the high court, is yet to obtain leave of the court.
How the courts and statute in India distinguish corruption from outright bribery
In Dr. S. Dutt v. State of U.P. AIR 1966 SC 523, the Supreme Court observed that the word ‘corrupt’ is not necessarily synonymous with dishonesty or fraud, but is much wider. It even includes conduct that is neither fraudulent nor dishonest if it was otherwise blameworthy or improper.
P. R. Aiyar’s, ‘The Advanced Law Lexicon’, Vol. 1, 3rd Edn., 2009 defines the word ‘corrupt’ to include the act of doing something with an ‘intent’ to give some advantage inconsistent with official duty and the rights of others.
The Prevention of Corruption Act (POCA) 1988, incorporated S. 13 which was more or less consonant with the definition conceptualized by the apex court (supra).
Prior to the amending of POCA 1988, S. 13 read as follows:
13. Criminal misconduct by a public servant (1) A public servant is said to commit the offence of criminal misconduct,- … or (d) if he,- (i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or (ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or (iii) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest; … (2) Any public servant who commits criminal misconduct shall be punishable …
In K.Veeraswami v. Union of India 1991 SCC (3) 655 a 5-judge bench of the Supreme Court held that a judge is also a public servant within the meaning of S. 2 of the POCA, 1947. The apex court also held that action against a judge of the high court or supreme court can be launched after obtaining sanction of the competent authority as envisaged by s. 6 of the POCA.
However, the 2018 amendment to S. 13 of POCA reads:
In section 13 of the principal Act, for sub-section (1), the following shall be substituted, namely: (1) A public servant is said to commit the offence of criminal misconduct, (a) if he dishonestly or fraudulently misappropriates or otherwise converts for his own use any property entrusted to him or any property under his control as a public servant or allows any other person so to do; or (b) if he intentionally enriches himself illicitly during the period of his office. …
To a trained legal mind, it is amply clear that if the public servant is a judge being accused of a violation governed by the amended S. 13 of the POCA, it would be extremely difficult to obtain sanction of the competent authority, against criminal conduct of the judge while discharging his duties.
In the 2018 POCA amendments, persons found to bribe public officials are subject to sanctions under the amended S. 8, which reads:
8. (1) Any person who gives or promises to give an undue advantage to another person or persons, with intention— (i) to induce a public servant to perform improperly a public duty; or (ii) to reward such public servant for the improper performance of public duty; shall be punishable with …:
Provided that the provisions of this section shall not apply where a person is compelled to give such undue advantage: … that the person so compelled shall report the matter to the law enforcement authority …
Based on the report by Transparency International and the Centre for Media Studies, if bribes are to be monitored by law enforcement in relation to bribes sought and given to a judge to influence the outcome of a legal dispute, several issues arise. Firstly, a lawyer is bound by the Advocates Act, 1961 and is required to comply with the Bar Council of India Rules in respect of the conduct of advocates in the proper administration justice. The issue is, how does a private but illegal agreement under a lawyer-client relationship come to the fore involving the offence of bribery. Payment of bribes to a judge through a middleman would also be very difficult to monitor. The situation becomes more acute when the bribe is paid directly to the judge by the litigant.
A logical outcome could be that the opposing victimized litigant is compelled to pursue an appeal with the hope that he would eventually succeed, thereby adding to the logjam of cases pending in the judiciary. A repeat scenario could play out in the appeal as well, and up to the point that the case reaches finality. Therefore, since it is difficult to monitor the activities of innumerable lawyers and middlemen, it is reasonable to conclude that in order to reduce such illegal deals to a de minimis level, monitoring the “communications” amongst the illegal beneficiaries including the judge adjudicating the dispute is necessary in the national interest. The monetary and social cost to society justifies this approach.
The term “communications” ought to be defined after consulting various stakeholders and reviewed by concerned citizens. The number of judges to be monitored in India number in the few thousands, and the practicality of monitoring their communications is not beyond reasonable reach.
Judges who have nothing to hide but who seek privacy would be required to sacrifice their fundamental rights under the umbrella of exercising their fundamental duties. This apart, needless to state, enhanced salary and benefit packages along with improved judicial infrastructure is a necessity to ensure proper adjudication.
In this context, potentially, the number of judges who would exceed the call of duty would be in abundant supply. The environment in which judges with integrity would function would be greatly enhanced and they would not have to fight the corrupt ways of their criminal counterparts. Under the present circumstances, apart from perceptions, in reality the errant conduct of judges and society itself will eventually assure the demise of India over the next few decades.