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 MORE 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 ON 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 RAISES ABOUT ITS IDENTITY 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 ANY INCUMBENT

When I wrote the previous post, a well known author, writer and former journalist confronted me with a question whether I genuinely felt that the man at the centre of this controversy was really guilty. This is especially given the larger context of realities in judiciary and society both. 

And should anyone be punished without due process of law? Aren't there bigger sharks in this institution 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 malaise. It is sheer bad luck for an individual that he or she surfaced as symptom of a disease. While, disease has to be addressed, the tactical management of symptom became critical for the same.

even if societal realities or institutional realities were bad, the symptom should not be ignored. There should of course be stronger focus on containment and prevention of bigger 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. 

Many among the Delhi's legal circles, are vouching absolute innocence of the incumbent in question. 

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 SOCIETAL ECOSYSTEM IS RIGGED

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. 

But their position is different. They are virtually 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 JUDICIARY

Given serious psychological malignancy within ranks of judiciary, there is need for large-scale purge. It would be naive to expect that such malignant lot change its ways by an administrative order. Their disease, which is addiction to corruption, is incurable even though it may be containable. 

Without serious threat to such people and their total expulsion from the system, judiciary stands no chance to regain its credibility, integrity, efficiency and popular trust. 

We also need total transformation in procedures. From induction and training of judges to procedures for their promotion and continuation in service. 

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. Only leaders with exemplary character can build a wider culture of integrity, innovation and excellence. 

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 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.

The biggest violators of rule of law and justice often appear incumbents of state, enjoying patronage from the highest level. Alternatively, it would be the richest and the most powerful of India. 

It is doubtful if they are ready for this change, for sake of long-term security of Indian state and people as well as their own future generations.  

Probably this 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 may be insufficient.  

 We need serious leadership with credibility and integrity to salvage our judiciary 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. 

But if our systems and psyche are designed to psychologically condition people to turn corrupt, no amount of judicial or police reforms can contain corruption.

Ee need far bigger scale of systemic and psychological transformation. This is impossible without wholehearted participation of most key stakeholders of state and society.    

 

Cash Bags On Doorsteps of Judiciary: A Symptom of the Highest Stage of Societal Cancer

Cancer Kills. Whether it is individual cancer or societal cancer. Both inflict a slow and painful death to their victims. Death of a society is not in terms of physical annihilation. It leads to destruction of security for its members, erosion of trust towards the state or even among its members and a general debilitation of all organs of state and society. This may make the concerned society, far more vulnerable to clandestine external subversion and even direct military aggression.   

2. Corruption is no less than a cancer for society. But if this societal cancer of corruption takes over even the judiciary in its grip, it implies that all other organs of state and society have already been afflicted by this dangerous cancer. At this pace, everything in that society is certain to be doomed. It is death of hope. 

3. Indian intelligentsia, and especially the legal fraternity of Allahabad High Court, has gone gung-ho to appear saviors of a rotting and sinking institution that used to be the biggest beacon of hope in this country and inspiration and envy for people beyond our borders. They are expressing outrage over exposure of a known secret: serious corruption in Constitutional courts of India.  

4. Until a decade and half back, or at least by the turn of this century, Indian judiciary was held in very high esteem almost globally. Indian judges were marveled across all divides for their brilliance, courage and wisdom.  Our judiciary often overshadowed its counterparts not only in the developing world but even in some of the most established democracies through brilliance, innovation and moral courage to interpret laws beyond finer legal-clerical technicalities to push the state and society towards higher norms of justice, equity and fair-play. But we seem to have somehow lost the direction. We cannot blame the judges alone for this.  

5. I remember a decade and half back, I was addressing students of London School of Economics. My co-panelist was a Law Professor of German origin named Werner Menski. He had married a highly gracious and accomplished lady from Gujrati speaking community of Indian diaspora. This may have played only a minor role in what appeared his unusually deep academic interest in Indian laws, our traditional schools of jurisprudence and more importantly our judicial traditions, practices and principles. He was so well-versed with so-many landmark judgments of our courts, at different levels, during 1950s to 2000 that he explained finer nuances of so many of the judgments and their larger ramifications. It had never struck me earlier. He opined that Indian judges were often able to find innovative solutions to most vexed constraints of legal technicalities to arrive at judgments that adhered to the highest principles of justice and fair-play. It had simply left me in awe of brilliance and integrity of first few generations of jurists of post-independence India.  India still boasts of great judges. But they are too far and few. 

6. Such passionate respect for Indian judiciary was not confined to few academics alone. It was quite widely prevalent. I was also pursuing legal-consular matters on behalf of Indian mission in UK. These involved Govt of India's extradition requests as well as all matters under Mutual Legal Assistance Treaty. More than me, it were the eminent legal experts of UK, including the then Attorney General (with whom I had co-addressed members of Indian diaspora on quite a few occasions representing my High Commissioner) who expressed outrage at the largest democracy of the world, with a judiciary that, despite being a bit sluggish, had impeccable credibility, being placed in the same list  as countries like Somalia, Rwanda, DRC or Pakistan. These were countries in the so-called list-II for the purposes of extradition requests. It was assumed that integrity and autonomy of judicial institutions in these states were doubtful or suspect. Hence, when an extradition request came up from these states, the entire offence and the entire process was examined rather than the extraditable grounds of the offence. 

7. This appeared a clear conspiracy. It also hinted at a degree of racial prejudice. Many experts and veterans of diplomacy argued that the larger powerful opaque forces of the world, who continued to indirectly or clandestinely interfere in post-colonial world, did their best to resist a mechanism of rule of law on soil of the largest democracy of the world. Hence, they wanted an escape route for mega criminals, or even others, operating on Indian soil. They have always been determined to destroy popular trust in the ability of Indian institutions. It was also clear that amidst all constraints, if some insane members of Indian police, enforcement and intelligence agencies decided to chase any mega criminal, irrespective of the clout and might of the latter, who invariably were proxies of these opaque forces, the Indian judiciary was more or less sure to do the right thing. Hence, an escape route to evade Indian laws for such mega proxies was essential part of strategies. Many such experts opined that corruption was deliberately fused in Indian systems and psyche as a well thought out and well-calibrated geopolitical and geostrategic strategy. Of course, external forces may have had a very powerful role. But dynamics of a poorly regulated market, a long history of external occupation, cartelisation of political space of the country, and absence of a strong vision and traditions of statecraft created lethal cocktail. Certain degree of corruption may be tolerable or unavoidable. It is more like a minor infection from which society or institutions can get better. Absence of total corruption is utopia and thus impossible. But normalisation of corruption was outcome of sustained covert war and serious interference in our systems and institutions to shape our psyche with help of our own people. It was a silent but complex weapon by which our optimal rise as a state and civilisation has been scuttled. There were multiple indicators that indirect assault on rule of law was not an innocent and indigenous matter even though immediate villains were locals only. Notwithstanding these, I remember during 2011-12, friends of India in the British legal system did suggest that we make an effort to move out from list List-II to List-I in the British legal extradition regime. London had always been the first refuge of every legally wanted scoundrel in India, and last refuge for people who have lost hope in integrity and efficacy of our legal systems. At that point of time, United Kingdom was part of EU. Hence the friends of India stated that India cannot be placed at the same pedestal as EU or USA but it deserved to be at par with other commonwealth states like Canada, New Zealand and Australia whose judicial processes were not as suspect as that of Somalia or Pakistan.

8. Something has gone wrong since then. We shall never ever be able to establish the real cause and pin-point to anything specific that has ushered in such down-turn in integrity of nearly all our institutions. Credibility of Indian judiciary, especially the public perception about it, has particularly nosedived. 

9. Even before cash-gate episode hitting the Hon'ble Delhi High Court, one was horrified at the kind of orders/judgments and conduct of many judges that one came across. Many could see through the entire picture. A personality no less than a former CJI has openly conceded in media that corruption had increasingly gained acceptance as way of life in India and judiciary was as much impacted by this malaise as any other component of society. Hence, instead of pretending to be scandalized or outraged over the cash-gate, or attempting to cover up the same, or deflect public attention, Indian judiciary and other stakeholders of India need serious introspection.      

10. Corruption in judiciary, or for that matter in any component of state, in not merely a moral issue. It is the most serious threat to national security. As a committed former practitioner of national security, and sustained innovator in this sphere, I can say that corruption kills both society and state. It drastically impacts quality of governance, social trust or community cohesion. It seriously dents war waging and war winning capacities of state. Because it scuttles potential for optimal progress and innovation in every sphere of our existence. Corruption kills the quest for excellence in every human endeavour except perversity. The primary focus or priority of all ventures - private or public- turns into illegitimate, dishonest and unfair profit in collusion with anyone and everyone at any cost. Any society whose majority of elite are suspected to be corrupt, shall lose its basic human empathy. Despite outward aggression and bullying and moral pretensions of its leaders, the national character of a corrupt society turns cruel and yet cowardly. 

11. I am not saying so as part of some moral polemic or spiritual rant. A sound behavioral biologist or evolutionary psychologist shall confirm that how we behave can be assessed, influenced and shaped and not merely predicted by shape and contours of neuroanatomy as well as social and physical ambience. People with certain types of neuroanatomy are likely to behave in certain ways under certain conditions. A scientific examination of neural circuitry or finer contours of human brain, including overall orientation for hormonal balances, shall demonstrate that unusually corrupt and cruel people, despite showing undue aggression towards the weak, are far more likely to capitulate in face of the stronger.  When great American statesman Abrham Lincoln observed that bullies are always the first lick, he had no access to such knowledge but he was definitely endowed with exceptional power of observation.   

12. A high threshold of tolerance to corruption is the surest route to decimation of any society. It will bring in such genetic alterations in neural anatomy of people over the succeeding generations that it shall push an entire civilisation on a downward spiral of moral and psychological weakness. If one wishes to decimate a society or civilisation, all that is required is to patronize such leaders at the top, in any sector, who will institutionalize corruption and cowardice as moral and psychological attribute. Oppressive and corrupt leaders have always destroyed institutions, states and societies. I do not wish to say any further about the so-called nexuses in this direction. 

13. There can be no bigger horror for any society that aspires greatness or pretends to be Vishwa Guru to stumble upon brazen, rampant and naked corruption in its judiciary. Shamefully, the highest court of the country just chose to transfer the judge rather than investigate the matter. This is grossly unfair for amazingly honest and upright people in nearly every sphere, especially the judiciary. Over the years, judiciary in open societies have suffered bigger setbacks. Deep states, with enormous capacity of surveillance and coercion, have become globally powerful. They are suspected of not merely aggregating and patronizing corruption and crime but have attained far higher degree of sophistication and clout in this direction. No major corruption or institutionalized subversion can ever be possible in any major society on its own or without an organised and institutionalized patronage.    

14. Law has never been perfect anywhere in the world. Law is designed or enacted by supposedly wise people with a vision or aspiration for a just and fairer world and better society. This used to be the truth in the past. But this appears a big lie today if we look at character of legislators in nearly most democracies. Politics and legislation are no longer about total commitment to service. It is more about power grab rather than any deep ideological or principled commitment to anything. It is true that people, especially powerful ones or certain institutions, cannot always be decimated. Hence, a degree of public morality is not yet dead, especially in open societies.

15. As far as law is concerned, there has always been, and there shall always be, multiple gaps or  ambiguities and grey areas. In absence of public pressure, or pressure of moral and legal accountability, or right psychological conditioning, incumbents in judiciary shall always interpret the law or deliver verdicts as it suits them. Professional caliber, quality, integrity and wisdom of judges did impact their interpretation of law in the past. Those endowed with clerical mind-set, were always unempathetic and mechanical in their decisions, oblivious of the larger picture. Those with sluggish brain and lack of courage avoided judgments (Though it is possible that some wiser judges may delay decisions on contentious issues on which a decision, either way, is likely to evoke public unrest). Those with negative and vicious psyche are likely to act with cruelty and vengeance towards anyone. Those who are intellectually and ideologically opposed to the state or distrustful towards the executive, are likely to ignore even the most logical and rational considerations of national security to browbeat the executive on almost every issue.  

16. But today, all my friends in the legal circle state that barring few very rare judges, no one in the entire judiciary of India ever dares goes against the Executive on any serious matter. Interestingly, on important contentious issues, more often the matters up to the High Court level often lands up with such benches that are perceived to be loyal to the Government rather than the law or their own institution. Probably the roaster system software is also scared of the executive. Hence, there are such verdicts that are described as day light murder of justice. Justice in any case has never been equitably accessible to all citizens of our state. But today, we are at an entirely different level. It is not the victims but even the conscientious insiders within judiciary, have described Indian courts, in private, as the biggest slaughterhouse of justice. Only the mode of slaughter varies. Justice has appeared to have turned into more as exception rather than the norm. It is natural that if there is compromise at the behest of, or on behalf of, an all too powerful a patron, the incumbents shall extract their own pound of flesh.  

17. Hence, the Cash-gate of Delhi High Court has not surprised many. It is considered as an open secret of not only judiciary but entire society, especially the high and mighty. Probably, psyche of average successful Indian has been rigged, alongside all our systems. Being corrupt is not disapproved. But if you get caught, you are considered a fool. But many observe that you longer need to be corrupt to get indicted. Our criminal justice system has reached a level where anyone can be established as corrupt and there exists no recourse. Some worldly wise have observed on the cash-gate episode that the era of cash is over. Only the weak and unconnected or unsmart take recourse to cash. The smart or wise avail of services of those in Dubai, London, Hongkong or Singapore or even BVI or so many smarter havens through professional and reliable service providers. Many so-called greats in the legal fraternity have descended on Indian TV channels, whom I doubt anyone takes seriously, to pontificate over their own great virtues. I am sure if some upright incumbents in some of the institutions decides to confront them with proof, these great legal eagles may have to rely only upon their clout and connections and capacity to subvert, rather than moral virtues or knowledge of law, to wriggle out of embarrassment or indictment.      

18. Wise statesmen have always maintained that it is extremely important that judiciary in an open state and society is filled by incumbents with reasonable and rational mind. Unquestionable professional wisdom, moral courage, unqualified commitment to larger norms of justice and absolute financial integrity was part of the larger expectations of reasonableness from incumbents of judiciary. Else, the judiciary itself shall turn into the biggest noose to strangle and choke a society to its eventual death. It is absence of justice or assault on integrity of judiciary that has always destroyed internal virility and resilience of any great society. 

19. However, one has to go beyond cynicism, to commend the stance of Allahabad Bar Association. If handled well, the nascent movement initiated by legal fraternity of the Allahabad High Court has all the potential to turn into harbinger of something far bigger. Any effort to even marginally cleanse the rot in judiciary shall have its reverberations impacting not only other institutions of India but can go beyond our borders. Hence, agencies of Indian state would be on high alert to contain the damages, lest the fire engulfs far too many high and mighty. in any case, corruption is considered virtue, despite all our pretensions. 

20.. Idealism of youth is probably the biggest treasure of hope that a nation or civilisation can possess. There are far too many young lawyers of Allahabad Bar Association and elsewhere, who have shown immense fire and passion.  Similarly, in absence of wisdom of experience, the energy of idealism has the tendency to lose direction and momentum. Hence, there are many experienced lawyers also in this movement. Still, I have very little hope of something bigger and better. Yet, I take this opportunity to commend many good souls and upright members of Indian judiciary and Indian legal community. They are in plenty. I hope, they don't face extinction. But a stand-alone change in judiciary is not viable. A legal action, or impeachment, howsoever tactical, shall have at least a degree of deterrence. But it would never be sufficient to protect the judiciary and entire society from the monster of corruption. I have paid a heavy personal price for advocating comprehensive restructuring of institutions to eliminate space for corruption, cowardice, perversity and human malignancy, by altering institutions and influencing psyche of our people. 

21. A sturdy rule of law is not a luxury but necessity for security of our people and society. This is especially given our larger external ecosystem and internal constraints as a state. A corrupt judiciary threatens everyone. It destroys hope. It is the biggest weapon of silent and undetectable war against state, society and civilisation. But it would naive, myopic and even perverse to expect that a corrupt societal ecosystem can produce honest and upright judges. Corruption is believed to be as rampant among successful Indian elite as fishes needing water to survive or humans breathing oxygen to live. 

22. But all is still not yet lost. Honest Indians are not characters of fiction. They do exist. Average Indian does not get an option to stay clean or turn corrupt. They are compelled to court varying degrees of corruption as fait accompli for sheer survival.  But then there are those, who have turned incorrigibly sick and malignant. They can't breathe without harming people. The entire dynamics has been pushing more and more people to turn corrupt and hypocritical. Is there mass-criminalization of society? I very often wonder whether our systems have been designed to compel people to turn corrupt and oppress those who refuse to do so? Is this the surest recipe to push us in a Hobbesian state of nature, where each is at war with the other, if not individually then at least collectively as part of their identities? 

23. Yet, there are people in every sector, in all parts of the world who wish to fight for an honest system. They wish to breathe free air and enjoy complete freedom and yet act with total integrity and contribute towards building a better society for the sake of their inner strength. Can we bring some of them with a little brain and perspective together? So that they can persuade the entire society that this cancer of corruption is going to eventually destroy all of us including future of our children?   And explore an option, going well beyond simplistic solutions of the past? We need transformation of our outlook as society as well as large-scale restructuring of all our institutions to foster higher quality of social trust, integrity and human empathy.  This will neither be easy nor quick. This is going to test our character as a state and society.