In January 2010, Justice P.D. Dinakaran, then Chief Justice of the Karnataka high court, was made to face the door marked “OUT” in the judicial fortress — a formal enquiry into the allegations against him commenced. Transferring him to another high court was the sole way of escaping public pressure, but there were no takers. Sikkim of late is where the “rejects” are dumped.

Despite protests, on April 10, 2010, Dinakaran in Gangtok swore to uphold the Constitution and the laws of India. Justice Soumitra Sen of the Calcutta high court was already in the impeachment queue. Proceedings against both are pending and they may remain so until they retire. That is how the well-meaning safeguards save the sinners — the saints never test them.

Innocent accused deserve early acquittal; but suspects have no business to be in charge of the “non-negotiable institution of integrity”. Unfortunately, there is no provision in law for placing a dubious judge under suspension even after the guilt becomes palpable.

Under the Constitution of India, high courts are not subordinate to the Supreme Court; they are also “courts of record” with power to punish for its contempt. However, the power of appointment and of shuffling chief justices and judges of high courts, originally vested in the President of India as per the Constitution, was in 1993 appropriated by the Supreme Court to itself through a majority verdict (5:4) in what is known as “the second judges case”.

These powers make the high courts in effect subordinate. A judge of the Supreme Court retires at the age of 65 while a high court judge retires at 62; and these additional three years of office are good enough to bend the back of high court judges. What follows shows how it wrecks.

Justice Reghupathy of the Madras high court was allegedly approached by a lawyer seeking an improper favour ostensibly at the behest of the now famous former telecom minister A. Raja. Who concealed Mr Raja’s name — the Chief Justice of India (CJI) or the Chief Justice of Madras — is not relevant for the present enquiry.

Justice Reghupathy rightly brought the matter to the notice of the Chief Justice of the high court to facilitate concerted action against the guilty. But why did the Madras Chief Justice forward the complaint to the CJI? Was it a case of passing the buck?

In the prevailing discipline, the Supreme Court has no power to deal with a situation of the type — the CJI is neither a headmaster nor a head constable. Unfortunately, the high courts dare not feel independent — the fear is not of the executive but of the Supreme Court. The Centre’s recent move to establish uniformity of the age of retirement is intended to restore high courts’ dignity.

The attorney general was widely quoted in the media questioning the integrity of many sitting judges in the context of “unimpeachable integrity” being an “essential qualification”, not just a desirable one for a CVC. Justice Krishna Iyer, who retired some 30 years ago from the Supreme Court at the age of 65 when the expression “honest judge” was frowned upon because all judges were presumed to be honest, felt “morally molested” by the reported remark.

Just about the time when the molested was mollified by the AG’s clarifications, Justice Markandeya Katju of the Supreme Court discovered: “Something is rotten in the Allahabad high court... Some judges have their kith and kin practising in the same court and within a few years of starting practice the sons or relations have huge bank balances and are enjoying luxurious life...” All these were part of a judicial verdict, but based entirely on the judge’s personal knowledge.

The Allahabad high court, like an aggrieved depressed class, beseeched the Supreme Court to expunge the remarks. Justice Katju reaffirmed his charge against the unnamed few while mercifully exonerating the unnamed many. Protested intentions apart, a great high court stands tarnished; and an ordinary mortal would have earned six-month prison term for even suggesting half of what Justice Katju proclaimed.

What could be a quick remedy — if any — for this endemic of corruption in the high courts? The power to transfer judges is also with the collegium headed by the CJI. Could Justice Katju not have knocked at the Chief Justice’s door and named the daddy or uncle judge to be shunted out?

Allahabad high court, Lucknow Bench, deserves the nation’s gratitude for bringing the curtains down on the 60-year-old Ayodhya litigation on September 30 in the manner in which it was done. Contrary to fears expressed, the verdict did not generate communal unrest.

The judgments ran into more than 12,000 pages, bound together in about 30 volumes. Obviously a large number of hands were involved in the presentation, still, no one in the outside world could get a scoop on the verdict — all rumour and gossip mongers making rounds on the night before fell flat on their faces. Hail the high court — not “rotten” after all!

K.N. Bhat is a senior advocate of the Supreme Court and former Additional Solicitor
General of India