There is nothing wrong about Justice Kurian Joseph speaking his mind now
Justice Kurian Joseph, retired judge of the Supreme Court of India, has recently stirred up a hornet's nest by his public disclosure that former Chief Justice of India, Deepak Mishra, was apparently being controlled by someone outside the judiciary. Who that external controller was is not known, nor is it known why Justice Deepak Mishra was agreeable to such alleged control, but surely it is an allegation of corruption.
It is not the first time an allegation of corruption has been made against a CJI. Senior Advocate of the Supreme Court and former Union Law Minister Shanti Bhushan had filed an affidavit in the Supreme Court in 2010, stating that half the previous 16 CJIs were definitely corrupt, and of about two more there were strong suspicions. Since the filing of that affidavit, some more CJIs have come and gone around whose integrity there were several question marks. In 2001 the then-CJI Bharucha said that about 20% of the High Court judges in India were corrupt, and since then, the situation has deteriorated.
Some people are of the view that judicial corruption should be shoved under a carpet, as disclosing it publicly damages the judiciary. Thus, when I publicly disclosed about the corruption of a Madras High Court judge who was apparently being protected by a political party of Tamil Nadu, and for whom three CJIs reportedly made improper compromises, the then-CJI RM Lodha indirectly attacked me by saying, "For God's sake, don't destroy the people's faith in the judiciary". I wondered whether people's faith in the judiciary is destroyed when judges actually do corruption, or only when such corruption is exposed.
Judge Jerome Frank of the U.S. Court of Appeals said, "I am unable to conceive that in a democracy, it can ever be unwise to acquaint the public about the truth of the working of any branch of government. It is wholly undemocratic to treat the public as children who are unable to accept the unescapable shortcomings of man made institutions. The best way to bring about an elimination of those shortcomings in our judicial system is to have all our citizens informed as to how that system actually functions. It is a mistake therefore to try to establish and maintain through ignorance public esteem of our courts."
I entirely agree, and may give some of my own experiences in this connection.
(1) When I was the Acting Chief Justice of the Allahabad High Court, I met the then-CJI in Delhi and informed him about the corruption of some Allahabad High Court judges. He asked me what should be done about it? I replied that if he permitted, I could solve the problem in no time. He asked what did I propose to do? – I said on returning to Allahabad, I would tell the Registrar General of the Court to inform these corrupt judges that the police had been instructed not to allow them entry into the Court premises, and they will not be given any judicial work, and will get their salary cheques at home.
At this, the CJI said, "Don't do that as it will give politicians a handle to say that the judges are themselves saying there is corruption in the judiciary, and then they may do something against us." He then got those corrupt judges transferred to other High Courts - but is transfer the remedy?
They should have been thrown out of the judiciary.
(2) When I was a Supreme Court judge, there was an Acting Chief Justice of the Allahabad High Court who had been transferred to Allahabad from another High Court due to charges of corruption. By dint of seniority, he became the Acting CJ of the Court, and pressure was put by his supporters on the then-CJI Justice Kapadia to make him a permanent Chief Justice or elevate him to the Supreme Court.
The CJI had received some complaints about that judge, and he asked me to find out whether the complaints were true. Visiting Allahabad, I asked some senior lawyers of the High Court and they all said he was corrupt. One of these senior lawyers gave me three mobile numbers, which he said belonged to agents of that judge through whom he was doing alleged corruption.
On returning to Delhi I gave those mobile numbers to Justice Kapadia, and advised him to get those numbers tapped secretly through intelligence. After a few weeks, Justice Kapadia told me that the wire tapping confirmed what I had heard about the judge.
Thereafter, he was never confirmed as the Chief Justice or brought to the Supreme Court – but nothing further was done against him. In my opinion, Justice Kapadia should have recommended his impeachment to Parliament, but evidently did not do so to bury the matter under the carpet, following the view held by many that the judiciary should not be defamed.
(3) When I was Chief Justice of the Madras High Court, there was a corrupt judge in the Court who later became Chief Justice of another High Court by dint of seniority (under our judicial system, one cannot become a Chief Justice of one's parent High Court).
After I became a judge of the Supreme Court there was a strong move to bring that corrupt judge also to the Supreme Court, one of his supporters apparently being the then-CJI Balakrishnan. One day, during the lunch interval, I went to the chamber of Justice Kapadia, who was then a member of the Supreme Court Collegium (the five seniormost judges). I told him about the corruption of that judge, giving details, of which I had knowledge as I had been his Chief Justice in Madras High Court. I said I was not in the Collegium, but he was, and I had done my duty of informing him (there was no point informing the then-CJI Balkrishnan as he was purportedly a staunch supporter of that judge, as I was informed).
Justice Kapadia thanked me for informing him, but evidently never informed the then-CJI Balakrishnan – that corrupt judge would definitely have become a Supreme Court judge, but for massive documentary evidence produced by the Madras High Court lawyers showing his corruption. An impeachment motion was then brought against him in Parliament, but he resigned rather than facing it.
I can give several other instances but it is not necessary.
Some people may attack Justice Kurian Joseph now on the principle: Jis thaali me khaaye ho, usme chhed nahin karna chaahiye. In other words, since Justice Joseph had been in the judiciary, he should not have criticised his Chief Justice. But then, who else but a senior colleague would have had the best knowledge? Should the public not know what was going on in a state institution?
In a democracy, the people are supreme - they surely have a right to know what is going on in state institutions