The Silence of the (former) Judges: Does Judicial Omerta serve any purpose?

Over the past few years, Bar & Bench has interviewed a number of former Chief Justices of India, Supreme Court judges and High Court judges. And most of them have, in as many words, admitted that the higher judiciary is not entirely free of corruption and nepotism..Instances of judicial misdemeanour have been made public, whether it be the case of Soumitra Sen, V Ramaswamy or Dinakaran JJ., or more recently, the allegations levelled against former CJI KG Balakrishnan. However, there are more than a few incidents that go completely unreported. As a consequence of which, we will never know the true extent of wrongdoing in the higher judiciary..And judges of the apex court and the high courts have traditionally protected information pertaining to such incidents. Take for instance, former CJI JS Verma, who in this interview, claimed to know about more instances of corruption than what was in the public domain..Despite this, there remains a breed of former judges who equate pointing out flaws in the judiciary to dragging the institution as a whole, through the mud..Says former Supreme Court judge Justice CK Thakker,. “I am a soldier of the court, I will not speak against it.”.But the fact that there have been, and continue to be, bad apples in the higher judiciary is something even the staunchest “soldier of the court” cannot deny..The question, therefore is, is this self-imposed omerta of sorts helping in any way?.Though there exist guidelines framed by the Supreme Court preventing sitting judges from expressing their views, no such rules apply to retired judges. So, why do former judges – those who have seen the workings of the higher judiciary first hand – feel the need to withhold information of wrongdoing?.A House of Cards.The main reason for keeping mum seems to be to keep the image of the institution intact. As Senior Advocate Yatin Oza puts it, it is the first and foremost pillar of democracy without which the system will fail..Especially since the citizenry have little or no faith in the Executive. This fact has given credence to the belief that the judiciary is indeed the “last bastion”..As Justice SN Phukan puts it,.“It is the only institution in India that people are happy about.”.In other words, it is felt that if corruption in the higher judiciary is publicised, the people’s faith in the entire system will be dissolved. One retired high court judge takes a step further and says that the Executive is waiting in the wings to pounce on any opportunity to denigrate the Judiciary..That notion is not so hard to believe, given the very public tussle between the Executive and the Judiciary over judicial appointments..Through a Glass Darkly.A few other judges are of the opinion that it is difficult to gain information of such wrongdoing, given the hush-hush manner in which things work in the higher judiciary..As former CJI VN Khare puts it,.“We do not have an agency like IB attached to the judiciary, in the Supreme Court. We can observe their performances through (their) judgments, but a judge may be involved in other activities.”.Retired Supreme Court judge AK Patnaik J. agrees..“Many competent and honest persons have not been brought to the Supreme Court. .There has to be some institutional way of finding out who is good and who is not good.”.Man Bites Dog.Former judges have also pointed out that when allegations of corruption against a judge are levelled, it causes more of a hullaballoo than if anyone else is accused of the same offence..This is only natural, given the high moral standards judges are supposed to abide by..Justice Arijit Pasayat, retired judge of the Supreme Court says,.“I can only tell you one thing when a dog bites a man, it doesn’t make news but when a man bites a dog, it makes news. Somebody in the judiciary being corrupt is like a man biting a dog.”.This can be yet another reason for choosing not to make revelations against a former brother or sister judge: the stakes are high and things are bound to get ugly..And in some cases, mountains can be made of molehills, and the judge against whom the allegations are made has to bear that stigma for the rest of his career, whether or not such allegations are proved..In the past, lawyers have frivolously alleged that judges are corrupt. Former Delhi High Court judge Neeraj Kishan Kaul points out,.“When there is corruption in politics and executive, it can’t be that there will be no corruption in judiciary. It is part of the same system… It happens but at times I have also seen lawyers come out of the court and making the most irresponsible statements after a case has been lost…”.Voices of Dissent.There have, however, been a few instances of former judges pointing to chinks in the judicial armour. For example, Justice Chandru, who dedicated a chapter in his book Legal Profession and Appointment of Judges to his brother judge of the Madras High Court, Justice Ashok Kumar..He writes,.“Justice Ashok Kumar is no more, but the controversies surrounding his appointment still surround us….Though several infirmities were found (with his appointment as a permanent judge), the bench refused and ruled, ‘the clock cannot be out back’…In matters of this nature, one cannot brush aside the allegations as time barred.”.This raises another question of the Bench being reluctant to conduct proceedings against their own..On the other end of the spectrum, you have former judges like Markandey Katju J., who while pointing out to instances of judicial impropriety, seems to be adamant on dismissing the institution as a whole as being “beyond redemption”..Admittedly he has recently been pulled up by the apex court for derogatory remarks against sitting judges, but for the longest time, no one seemed to take the initiative to discredit his views on the higher judiciary..To sum up, the notion seems to be that the ultimate goal is to preserve the image of the institution, even if it means remaining silent about indiscretions, however minor. But at what point does one draw the line? How many such indiscretions are the subscribers to omerta willing to turn a blind eye to?.Coming back to the issue of the greater good, the question therefore is, will not this revered institution rise in stock once the undesirable elements are cleansed from it? Will not the information former judges possess help in securing a more transparent and upright judiciary?