CASHHGATE AT DELHI HIGH COURT: SEEING THE ISSUE BEYOND LEGAL, CLERICAL AND MORAL PRISMS

DIMINISHING PUBLIC INTEREST

Public outcry over cash discovery at residence of a Delhi High Court Judge is slowly dying down. Even though the Chief Justice of India has assured to hear a writ filed on the matter by an activist lawyer, there is little hope of any substantive action. 

Public memory has always been short. But in era of infotainment, is far too shorter. 

Media has got busy with more exciting news.     

Lawyers of the Allahabad High Court had tried hard to keep the issue alive for a while. They have been remarkably brave and they have not lost as yet. Still there is little of hope that the rot in judiciary can be cleansed in the near future.   

In fact, lawyers, social activists and intelligentsia across the country had appeared genuinely outraged over Cash-gate on the doorsteps of judiciary. Some may be just seeking public attention. 

But the issue at stake is far deeper than what appears at the surface. 

If we care for our state, society as well as our own individual security and overall destiny of our future generations, we must try to see the entire matter beyond legal-clerical prisms or even simple moral outrage. 

NEED TO SEE THE ISSUE HOLISTICALLY

Corruption in judiciary may be a global reality even though the degrees may vary. One of the former CJIs had stated that after all judges come from the same society where corruption had increasingly become an acceptable way of life.  

Our slow, sluggish and expensive judicial processes make justice an expensive commodity to an extent that there exists an apprehension whether our systems have been rigged to erode rule of law. But when corruption becomes rampant in judiciary, it implies that most other institutions have already been compromised and corrupted.  

A functional and transparent criminal justice system is a prerequisite for not only security and dignity of every Indian but also our optimal progress as a state and society.   I have explained in the previous post that how corruption in judiciary shall kill quest for excellence in every sphere of life and destroy societal cohesion and trust.  Additionally, a corrupt system in a globalised world offers our external adversaries a powerful weapon to subvert our optimal progress in every sphere and permanently cripple us even without war.   

A STREEAK OF INSENSITIVITY UNDERMINING CREDIBILITY OF JUDICIARY

In recent times, a substantial section of our judiciary has displayed a streak of brazen human insensitivity. It has raised doubts about its integrity as an institution and its commitment towards society. Many of its judgments appeared driven by something entirely different than the nobler ethic of law or justice or defence of integrity and cohesion of society or even long-term security of this nation. Listing these out shall distort the focus of this write up. 

But a closer examination suggests that the underlying conditions may be far too deep-rooted and complex. But the potential consequences appear too dangerous for entire society and all our aspirations for great power status, if the same is not detected and dealt with.   

    We all have read details in media on how Allahabad High Court inflicted incalculable pain and trauma on a minor - who had already been traumatized by forcible grabbing of her private parts and breaking of strings of her pyjamas -by observing that such actions by her tormentors did not amount to attempted rape. It is difficult to believe such conclusion is possible for any human mind without psychological pathology, or capitulation to underhand pressures or allurements. 

 This is not an isolated incident. There would be scores of these, unreported in media, which undermine popular trust in credibility and ability of Indian judiciary to protect unarmed citizenry who trust laws and institutions of state.  

A SYTEMIC DECAY OF JUDICIARY AS AN INSTITUTION

Even a speculation on what drove such observation shall make citizens liable for punishment for contempt of court. But what is undeniable is that the Indian society is suffering from serious pathological disorder that are beyond capacity of legal-clerical framework of rules and laws to correct.  

 Public uproar over judicial assault on the minor victim saw the Supreme Court descend in damage control mode. It overturned the decision of the High Court. It brought down levels of public anguish. But that is still not sufficient to restore credibility of judiciary as an institution or popular trust in its integrity to protect laws.  

Whether a district court or a High Court or the highest court, they all must have substantially same or similar interpretation of law. This is what differentiates an institution from a motely crowd, where each pursues its own private agenda. 

An institution of a state is expected to act in the most impartial manner, irrespective of individual outlook or orientation of an incumbent. Its collective approach on issues has to be uniform, consistent and logical, in most cases.  

NO PRE-JUDGING ANY ISSUE OR INCUMBENT

When I wrote the previous post, a well-known author and former journalist confronted me with questions:

a) whether I felt that the judge at the centre of this controversy was really guilty of a big offence? This is especially given the depth of corruption in judiciary and society both? 

b) should anyone be punished without due process of law? 

c) Aren't there bigger sharks in judiciary or elsewhere?

He also charged me with jumping on the bandwagon of perennial attention seekers.   

I responded that the issue was not about an individual. It was symptom of a deeper systemic malaise with dangerous implications for security of every individual. 

It is sheer bad luck for an individual that he or she got exposed as symptom of a disease. 

While, disease has to be addressed, the tactical management of symptom became critical for the same.

even if the entire societal realities or institutional realities were bad, such symptom of disease, who get exposed, should not be ignored. Of course, there should be stronger focus on containment and prevention of this disease.    

Of course, no one should be punished without due process of law. But the entire process of law is so slow and sluggish that popular trust in the same is declining. 

But at the same time, our police and enforcement agencies are strong enough to detect people who planted cash at residence of such a judge. Hence, the excuses offered by that Hon'ble judge, purportedly in a letter making rounds on social media, appear laughable.   

Many among the Delhi's legal circles, are vouching absolute innocence of the incumbent in question. But I doubt anyone not involved in the matter trusts them. 

CORRUPTION: AN ALL PERVASIVE REALITY

Corruption has sadly turned into an unwritten and yet near universal fact of life for every successful Indian. Our systems appear rigged to an extent that even breathing can become challenging for anyone seeking to adhere to absolute norms of absolute incorruptibility. This may be reality in almost all post-colonial fragile democracies.   

In the largest, and the most cacophonous democracy of the world, we cannot avoid professional attention seekers. In their quest for publicity, they land up trivializing even the most sensitive matters impacting our society and its people. 

But this does not take away the enormity of shock over disclosure of suspected vulgar underbelly of the most venerable and trusted institution of any open society. 

Whatever may be the underlying compulsion, administration of justice appears to be losing consistency, fairness, impartiality and transparency at least up to the level of High Courts. It has been sluggish in any case. 

But now it seems to have reached a level where justice appears increasingly an illusion for most citizens. Cash gate episode probably offers an explanation and cue in this direction. It is more important that as a society we discuss the issue with candor to explore remedial measures.   

WHY BLAME JUDICIARY ALONE WHEN ENTIRE SOCIETAL ECOSYSTEM IS PERVERTED?

While we cannot blame judiciary alone for the larger societal rot, because its incumbents are as much outcome of society as those in other wings of the state, their position is different. 

They are virtually like deities in temples of justice. There is need for ensuring their dignity and security at one level. But at another, they must be guarded from larger evils of society. For the sake of security and stability of society, judges need to appear superior and more virtuous than the rest of the society. Their decisions impact society and systems, including long-term behavioural pattern of people. 

It is ironical that entire justice system in our society often appears a legal clerical match between two sets lawyers. It is time to break through this model and push for larger quest of truth and justice.  

NEED FOR RADICAL RESTRUCTURING OF ALL INSTITUTIONS BEGINNING WITH JUDICIARY

Given serious psychological malignancy within ranks of all institutions, including judiciary, there is need for large-scale purge in most as the first step towards institutional restructuring. It would be naive to expect that such malignant lot shall change its ways by an administrative order. 

Corruption is behavioural disorder and psychological disease, which can be partially attributed to genetic make up and partly to upbringing and substantially to larger societal and institutional ecosystem. Their disease can turn into epidemic if institutional safeguards turn weak and fragile and societal ecosystem is perverted. We need a large-scale societal transformation.  

While specific reforms in other institutions is a separate matter, we need to focus on judiciary here.

Without serious threat to such people and their total expulsion from the system, judiciary stands no chance to regain its credibility, efficiency and integrity, which is critical for integrity for all institutions. 

We also need total transformation in procedures. From induction and training of judges to procedures for their promotion and continuation in service. Without solid professional knowledge, output, courage and character, no one should be allowed to continue, leave aside rising high in the profession.  

Elevation of lawyers, who have been defending rich criminals, to position of judges may have done far more harm to judiciary than any other factor. 

Psychologically, they are already conditioned to endorse criminality and corruption. They are not to be blamed for this. Their moral fabric has already stretched to treat corruption and criminality as normal and not so dishonourable. It will be few rare individuals who may change once they become judges.

Only genuine leaders with exemplary character can build a wider culture of integrity, innovation and excellence in judiciary. For this there is need to identify a crop of genuine leaders, known for integrity, empathy and professional knowledge. We need not one or two but an army of leaders in judiciary from benches to bars and registry. But they too should be kept under strict impartial watch or public scrutiny, lest they are overwhelmed by the societal surroundings and circumstances.

HARNESSING STRENGTHS OF DEMOCRACY 

Democracy, with freedom for enterprise and free speech, provides the biggest possible space for powerful ideas and initiatives from society itself. Its energised and enlightened members should not be deterred from floating powerful ideas for collective wellbeing of all or comprehensive advancement of entire society. 

But this freedom for enterprise and free speech is also vulnerable to abuse by self-seeking ignorant or malignant elements. This freedom has been increasingly abused in most open societies. Without making it a precondition for institutional and structural reforms in judiciary, there is need for exploring ways in which the wisest of the wise can make laws, and intelligent and honest can enforce laws and again people with divine level of integrity can adjudicate or decide on laws. This is aspiring too much.

We have to remember that any distortion in legislature and executive can be managed, deterred and corrected by judiciary. But if judiciary itself is subverted and distorted then the challenges get multiplied. Hence, institutional, structural and procedural reforms in judiciary to speed up the process of justice and bring down its cost for masses as well as ensuring integrity of the entire process can go independent of all other priorities.

STAKEHOLDERS OF STATE AND SOCIETY MUST COME TOGETHER   

However, stakeholders of Indian state and society must come together in this direction. For long-term security of Indian state and people as well as their own future generations. 

The biggest violators of rule of law and justice often appear incumbents of state, enjoying patronage from the highest level.  The other elements appear the richest and the most powerful of India. Most poor appear victims of their circumstances or ignorance. 

Our society is probably not ready for this change 

Probably this is what that has paralysed our capacity as a state to fix or cure this societal cancer. 

 Punishment for subversion of justice must be deterrent. This may be necessary in few glaring cases. And yet it may be insufficient to contain the entire menace.  

 We need serious leadership with credibility and integrity to salvage not only our judiciary but entire with minimal collateral damages. 

As a society, our focus has to be on guarding our people and society from the societal cancer of corruption. Courts and police can fix few cases of aberration in society. But if our systems and psyche are designed to psychologically condition people to breed corruption, no amount of judicial or police reforms can contain this societal cancer.

We need far bigger scale of systemic and psychological transformation. We need to come out of colonial psychological conditioning. Where we find solace in punishing people over every issue. 

We need deep wisdom, which is impossible for majority or most, in devising legislation or procedures of criminal justice or building larger societal ethic of trust and integrity. 

 Our rules, laws and procedures should be such that these must foster the highest quality of trust in society at one level. At another, these offer freedom for constructive enterprise and ideas to optimise our collective material and moral or intellectual wealth. 

We can never be perfect overnight. But as we travel in this direction, gradually we are bound to get better. 

CAN WE RESURRECT THE FINEST PRINCIPLES OF STATE-CRAFT AS OVERARCHING FRAMEWORK OF ALL DIMENSIONS OF GOVERNANCE?

This was the essence of ancient Indian statecraft that had withered away long before Muslim invasion. This is what that had differentiated India from Rome, Greece or Egypt, Persia and Iran. This what that had brought about remarkable peace and prosperity in almost of whole of Asia, making this continent the centre of both material and intellectual wealth for several millennia than what the colonial history would like us to believe. 

Can we make few modest moves to resurrect those scientific and yet eternal principles of Indian statecraft? By adapting these to our contemporary context and incorporating wider access to far more credible and advanced knowledge or information that is available today? 

I have no confusion that despite all freedom of a cacophonous democracy, our systems remain partly conditioned and partly rigged to keep us intellectually and materially a supplicant of bigger forces of the world. Our biggest enemies in this direction are people psychologically conditioned to such levels of dishonesty and self-interest that nothing may appear more important to them.     

We can break through this mode.  But this would not be possible without whole-hearted support of most, but not necessarily all, key stakeholders of our state and society.  The watch word shall be persuasion, integrity and trust amidst credibility of persuaders. 

Corruption, especially large-scale and rampant, is symptom of larger societal and governance disorder. It shows absence of adequate trust within society and poor credibility of state. 

A solid approach shall seek to address both the symptom and the disease. 

There will be multiple obstacles in this direction. We cannot entirely eradicate this disease from society. But we can certainly eradicate it from judiciary in a decade or two. 

There will be opposition from spirited vested interests from within the country and their external patrons whose geopolitical agenda involves keeping us with such dysfunctional level of governance where we remain vulnerable to exploitation and our progress remains sub-optimal.