BS : And justice for a handful : Oct 14,2007
And justice for a handful |
M Shamsur Rabb Khan / New Delhi October 14, 2007 |
A poor judicial system is a major reason for India’s low global rankings. |
Transparency International’s 429-page “Global Corruption Report 2007 — Corruption in Judicial System” (GCR) maps out the turpitude plaguing the judicial sector in countries across the globe. And the performance of the Indian judiciary is dismal, if not the worst. For example, on the Corruption Perception Index (CPI) 2006, India ranked 70th (out of 163 countries) along with Brazil, China, Egypt, Ghana, Mexico, Peru, Saudi Arabia and Senegal with a CPI score of 3.3 out of 10. India’s last ranking (30th) in the Bribe Payers Index 2006, which lists the performance of 30 nations, shows that to become a powerful nation that can compete with the developed word, India has miles to go in ensuring a fair justice system. However, India can take respite in the fact that it is less corrupt than neighbouring Pakistan which is ranked 142nd (CPI 2.2), Sri Lanka 84th (CPI 3.1) and Bangladesh 156th (CPI 2.0). Finland, Iceland and New Zealand with an impressive CPI of 9.6 each are the least corrupt so far as judicial corruption is concerned. |
In the Indian context, the GCR details two cases where the judiciary failed to deliver: first, a Supreme Court decision in the 2002 case, Zahira Habibullah Sheikh v State of Gujarat, in which the apex court punished the victim rather than the culprits and acquitted a person close to the party in power. Second, the 2006 acquittal of the nine accused in the Jessica Lal murder case in 1999 even though the incident took place in the presence of several witnesses, because one of the accused was the son of a politician. |
With the assertion that the “judiciary is facing a crisis of confidence in many parts of the world,” TI defines corruption as “the abuse of entrusted power for private gain”. The GCR contains the Global Corruption Barometer 2006, a report based on a poll of 59,661 people in 61 countries, which reveals that more than 10 per cent of the respondents who had dealt with the judicial system claimed that they (or a member of their family) had paid a bribe to obtain a favourable outcome in the case. The report records two types of widespread judicial corruption: political interference in the judicial process, and bribery. |
On the basis of the data prepared in response to this question, the sector that is most affected by bribery is the police (17 per cent), followed by the registry and permit service (9 per cent), and legal system/judiciary (8 per cent). “Which regions are most affected by bribery?” can offer us some relief as Africa (55 per cent), not Asia (32 per cent), has the distinction of paying the highest percentage of bribes to the police. |
Another chapter that makes interesting reading is: “When are the judges likely to be corrupt?” It is written by Stefan Voigt, the Chair for Institutional and International Economics, Phillips University, Marburg, Germany, who presents the “possible determinants of judicial corruption” in the form of seven hypotheses. These include “the lower the official salary, the higher the likelihood of corrupt behaviour” (first hypothesis), “the slower the judicial system, the higher the likelihood of corruption” (hypothesis 4) and “countries in which the prosecution agencies enjoy a monopoly have a higher level of corruption” (hypothesis 7).This ultimately leads to four potential measures to tackle judicial corruption: increment in judges’ remuneration; reduction of procedural formalism; reduction of time to arrive at a judicial decision; and getting rid of the monopoly of prosecution agencies to initiate prosecution. Besides, the chapter highlights a pertinent point: the higher the per capita income and the more open to international trade an economy is, the lower the expected level of corruption. |
The report adds that corruption has two manifestations: one is the corruption of judicial officers, and the other involves the broader judicial system itself. The upper judiciary is relatively clean, with exceptions. Under the broader judicial system, however, corruption is systemic — there is a high level of corrupt practices among clerks, prosecutors and police investigators who misuse their power. |
The report cites the countrywide survey conducted by the Centre for Media Studies, New Delhi in 2005 on public perception and experiences of corruption in the lower courts. The survey said that bribing is the best means to get things done. The survey estimates such bribes at around Rs 630 crore per year. This money is given in the following proportions: lawyers get 61 per cent, court officials get 29 per cent, judges get 5 per cent; and middlemen get 5 per cent. |
In India, the current ratio of judges to population is 12 to one million, compared to 107 judges in the US, 75 in Canada, and 51 in the UK. In March 2006, there were only three vacancies in the Supreme Court, 131 in the high courts and 644 in the lower courts. In February 2006, 33,635 cases were pending in the Supreme Court with 26 judges; 3,341,040 cases in the high courts with 670 judges; and 25,306,458 cases in 13,204 sub-ordinate courts. |
And at the current rate of disposal, it would take another 350 years to dispose off the pending cases if no other cases are added to the list. Judges cope with such huge lists by declaring adjournments, which prompt people to pay speed money. The report points to the Malimath Committee report of 2003 (on the criminal justice system) which recommended sweeping reforms in the judiciary, including in the investigating agencies, the prosecution department, courts, lawyers, the prison administration, and so on. Some of the major recommendations of the Malimath Committee include: increasing the number of judges (ratio of judge to population be increased from 12 to 50); judicial accountability (a Judges Inquiry Bill was proposed in 2006); code of conduct (the adoption of Restatement of Values of Judicial Life in 1999 and Bangalore Principles of Judicial Conduct in 2002); court record management (an e-committee was set up in October 2005 for the computerisation of justice delivery system); recruitment (need for an all-India judicial services); and financial and administrative authority (the judiciary needs powers in matters of finance and administration). |
On the solutions front, the report also suggests four key areas: (i) judicial appointment, which includes an independent judicial appointment body, merit-based appointment, and civil society participation; (ii) terms and conditions, which include judicial salaries, protection, transfer, access to information and security of tenure; (iii) accountability and discipline, which includes codes of conduct, a whistleblower policy, strong and independent judges’ association, among others; and (iv) transparency, which includes transparent organisation, work, prosecution services and judicial asset disclosure, among others. |
Do we have the willpower to go ahead with judicial reforms? |
Publication : BS; Section : Opiion; Pg : 15; Date : 14/10/07