INDIA: Judicial transparency is not an act of charity

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--- On Tue, 1/4/11, ALRC News wrote:

From: ALRC News
Subject: INDIA: Judicial transparency is not an act of charity
To: protectorofhumanrights@yahoo.com
Date: Tuesday, January 4, 2011, 10:07 AM

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FOR IMMEDIATE RELEASE

ALRC-STM-001-2011

January 4, 2011



A Statement by the Asian Legal Resource Centre



INDIA: Judicial transparency is not an act of charity



The Indian judiciary is once again in the news and this time too it is
for appalling reasons. The national and regional media have been
reporting in the past two weeks regarding the disproportionate wealth
between the declared and known incomes, of some of the close relatives
of the former Chief Justice of India, Justice K. G. Balakrishnan. The
reports allege that this wealth was amassed in the past four years,
during which Justice Balakrishnan served as the Chief Justice of the
country. The fact that the persons suspected of corruption are the
family members of the former Chief Justice and that the former judge is
the current Chairperson of the National Human Rights Commission (NHRC)
does not make matters easy for the former judge. On the contrary, it
casts a duty upon him to explain why his name or that of the
institution he once led and the one he now chairs should not be dragged
into a scandal.



During the past fifteen years, the country's judiciary has been
embroiled in one controversy after another, all involving allegations
of corruption and nepotism of some of the senior judges in the country.
It is not a matter of mere unpleasant coincidence that some of the
suspected judges have served as Chief Justices, but on the contrary it
exposes the built-in defects of the Indian justice institutions, a fact
that lawyers, a former law minister, experienced journalists and many
of the former senior judges in the country equally agree upon. There is
a petition, pending before the Supreme Court, on the question of
allegations of corruption against former Chief Justices of India. It is
unfortunate that this petition is in the form of a contempt of court
proceeding against two Senior Lawyers, Mr. Prashant Bushan and Mr.
Santhi Bushan, for their attempt to bring the long overdue transparency
and accountability into the judiciary, particularly within the higher
judiciary.



During Justice Balakrishnan's tenure as the 37th Chief Justice of
India, he did not help much in dissipating the cloud of suspicion that
has encircled the Indian judiciary and thus establishing the integrity
of the institution that he was asked to lead. In his capacity as the
Chief Justice, Justice Balakrishnan became infamous for his unyielding
attitude of refusing the operation of the Right to Information Act,
2005 upon the higher judiciary. Though he later succumbed to equally
uncompromising public sentiments and let willi ng judges, who were in
the majority, to disclose their assets, but by then he had done further
damage to the already bruised image of the institution.



Justice Balakrishnan was in the centre of yet another controversy
during his tenure as the Chief Justice and as the head of the Supreme
Court Collegium for the appointment of judges, when he showed undue
haste for the promotion of a High Court judge to the Supreme Court,
despite allegations of wide ranging corruption against the judge who
was recommended to be promoted. The President of India declined to
accept the Collegium's recommendation for promotion of the judge.
Justice Balakrishnan's subsequent acquiesce for the Central Bureau of
Investigation to investigate allegations of corruption against High
Court judges did nothing to restore the already lost public confidence.



Given the fact that the allegations against the former judge 's family
are based on substantial proof and that the suspected corruption
happened during the tenure of Justice Balakrishnan as the Chief Justice
of India, one cannot complain that the reports have brought further
adverse public perception upon the office of the Chief Justice. The
nature of the allegations and the institutions involved are such that
the Chairperson of the NHRC cannot shrug it off by mere denial.



What is at stake here is more than an individual or his family affairs.
What is being debated in public is not about who made what money during
which time. The debate concerns the trustworthiness of the country's
supreme justice institutions and the general agony about these
institutions, the Supreme Court in particular, is rooted in the reality
that these institutions are highly susceptible to misuse. In the
absence of any mechanism or process that is transparent enough to meet
the standards of the modern democratic country that Indians believe
they live in, mere adherence to a logic of the medieval ages that 'we
are knowledgeable and reasonable enough to correct ourselves' is not
enough to ensure basic norms of transparency within the judiciary. The
public anger in India today is against those who pose hindrances for
bringing transparency and accountability in public service and into
institutions that the ordinary person depends upon as the last resort
in his pursuit for ju stice. It is the very essence of the ability of
the country's democratic institutions, and thus that of the country
itself, that has been challenged.



In a separate vein, Justice Balakrishnan is also considered as the
embodiment of Dalit liberation in India. It is thus equally the
responsibility of the Dalit movement, in India and abroad, to ensure
that the allegations against the first Dalit Chief Justi ce will not be
used against the Dalit movement in the country.



In the present environment one cannot find fault with those who have
started believing that the country's judiciary gives tacit approval to
corruption and nepotism in favour of those who wield power. The
comments that refer to the Vigilance and Anti-Corruption Bureau's
investigation recommended by the Chief Minister of Kerala against one
of the relatives of the former Chief Justice as a farce, also cannot be
taken lightly.



In the mêlée of these allegations, suspicions and counter allegations
what is at stake is the public trust of two important national
institutions, the Supreme Court of India and along with it the entire
judiciary, and the NHRC. Many have demanded Justice Balakrishnan's
resignation from the post of the Chairperson at the NHRC. To save the
institutions from further moral damage, it is not enough t hat those who
are accused of corruption are simply allowed to resign. Now that a
formal complaint has been made against the former judge, the
allegations must be investigated. And, if the investigation leads to
the discovery of a crime, it must be prosecuted. The positions that the
person held or holds must not be a hindrance in the course of justice.
It however makes sense for Justice Balakrishnan to resign from the
position of the Chairperson at the NHRC to ensure that all
investigations into the allegations are conducted impartially.



The fact that the judge facing the accusation is currently the
Chairperson of the NHRC has also implications for India in
international forums like the United Nations. At the moment, the NHRC
has an 'A' status as assessed and reviewed by the Sub Committee on
Accreditation (SCA) of the International Coordinating Committee of
National Institutions for the Promot ion and Protection of Human Rights
(ICC) at the UN. The case of the NHRC of Sri Lanka is proof to the fact
that this status is not permanent and it could be degraded, an event
that could cause international embarrassment to India.



The report of the UN Secretary General dated 15 January 2010
(A/HRC/13/44) to the General Assembly enumerates a series of programmes
the UN and its allied organisations have implemented in cooperation
with the NHRC in India. The NHRC is also an implementing entity for
programmes sponsored by the UN, not only in India, but also in other
countries as a consultant. The fact that such an NHRC has a Chairperson
with a tainted image would not be a light burden for the government. In
other words, the Chairperson of the NHRC cannot just sit idle and
merely deny allegations but must do everything legally and ethically
possible at his disposal to clear the name of the institution that he
leads from the scandal.



It is trite to argue that the judges, irrespective of their stature and
the jurisdiction they entertain, are holding public offices. Being a
judge does not shield a person or the office the person holds from the
constitutional, as well as commonsense requirement, to be transparent
and accountable to the public. There is no justice that could be upheld
beyond being honest to the people who entrust them the job, and the
constitutional obligation that they have sworn to protect, promote and
fulfil. In the same vein, there is no greater injustice than the
resentment or reluctance to be transparent and constitutionally
accountable while holding such offices and even worse to use the same
constitution that entrusts them to do a public service as an excuse to
prevent transparency and accountability while holding such an office.
Perhaps it is also a rude reminder to the country that it is too late
to re-examine the institutional structure of the Indian judiciary
itself. It is time to stop the muffled and reined discussion on the
subject and open it up for a larger debate, inviting everyone who is
concerned about the integrity of the country's judiciary to participate
and suggest means by which the lost confidence in the justice system of
the country can be salvaged from the abyss into which it is plummeting
rapidly.



Allowing for transparency and accountability on those terms is thus not
an act of charity that anyone who holds a public office can deny at
will. They form the cornerstones upon which a democratic state is built
and the dream of every Indian is woven. Thus, destroying it would be
worse than betraying the country.



# # #



About the ALRC: The Asian Legal Resource
Centre is a n independent regional non-governmental organisation holding
general consultative status with the Economic and Social Council of the
United Nations. It is the sister organisation of the Asian Human Rights
Commission. The Hong Kong-based group seeks to strengthen and encourage
positive action on legal and human rights issues at the local and
national levels throughout Asia.

International Human Rights Day 2010 - Download our pre-print PDF version of the annual reports here.




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