(This post first appeared on the Global Anticorruption Blog)
Over the past four decades, India’s “activist” higher judiciary (the state High Courts and the federal Supreme Court) has significantly altered the balance of power between branches of government. This has been done by liberalising the rules on who can petition the court for relief, as well as expanding the scope of the judicial relief that can be provided. Today it is entirely normal for the Court to take up the task of monitoring the execution of government policies as well as the progress of criminal investigations. But this expansion of judicial power has not been matched by a coequal expansion of oversight mechanisms to ensure that judicial power is not abused—a significant problem given the serious corruption problem in India’s courts (see also here). Certain problems with the court system have attracted the attention of both commentators and the Parliament, including the Chief Justice’s unfettered power to assign cases to different judges and the system for appointments and impeachment. Surprisingly, far less attention has been paid to another instance of no oversight over the judicial branch: the doctrine of judicial immunity.
Across countries, judicial officers are conferred broad judicial immunity to allow courts to fearlessly perform their functions. Significantly though, in most countries this protection applies only to acts in furtherance of the “judicial function”; for acts outside that scope, judges are subject to the law just like ordinary citizens. Not so in India. In 1991, the Indian Supreme Court created a rule that no criminal investigation whatsoever could begin against a member of the higher judiciary without first “consulting” the Chief Justice of India (or, if allegations are against the Chief Justice, consulting with any other Supreme Court Justice). According to the Court, this rule was needed to protect judges from “frivolous prosecution and unnecessary harassment.”
Such a broad judicial immunity rule makes no sense, either generally or in the Indian context. While it’s reasonable to prevent a judge from being prosecuted for how she decided a case, it makes no sense to protect her for having murdered somebody, or taking a bribe. Indeed, in addition to its other obvious problems, this broad judicial immunity rule creates serious difficulties for efforts to fight endemic judicial corruption in India.
Most straightforwardly, the “consultation” requirement delays proper investigation of corrupt judicial officers, and may sometimes block investigations altogether. The most recent example came in December 2017, when the Chief Justice denied permission to investigate a judge of the Allahabad High Court for corruption, though the Chief Justice found the material sufficient to recommend the judge’s removal. By shielding officials in this fashion, the system engenders corruption by fostering a lack of transparency and accountability. Even if one accepts that investigative agencies can be manipulated to bring about frivolous cases in India, the law already protects public servants—including judges—from prosecutions for their official acts by imposing a need for administrative consent. The additional judicial immunity protections only burden the investigative process.
In other contexts, the Indian Supreme Court has sharply criticised legal provisions that require consent of a higher official before proceeding with a prosecution, given the tendency of such a system to delay or derail corruption prosecutions. Yet the Court refused to recognise the potential for similar abuses in its own case. It’s also telling—and troubling—that India’s special judicial immunity rule applies only to higher court judges, not to trial court judges. One struggles to find a reason behind this limitation except for the status that the higher judiciary occupies. Again, the Court’s doublespeak while dealing with other branches of government and itself is striking: In 2014 the Court did not hesitate to nullify similar protections for senior bureaucrats, finding that a similar status-based classification was arbitrary. But when a petition concerning the judicial immunity came up last November, it was re-affirmed by the Court.
The 1991 rule should be eliminated. Even if a complete rescission of the rule does not come to pass, at the very least some exclusions to the blanket rule are urgently needed. For instance, judicial immunity should not apply in cases where a judge is charged with taking bribes for exerting influence outside beyond her judicial role. India should take firm steps to remind its citizens and the world that merely donning the robe does not automatically render any individual above scrutiny.
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