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SUDHIR KRISHNASWAMY
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Dr Sudhir Krishnaswamy is Professor of Law, West Bengal National University of ­Juridical Sciences

Gestures will not cure judicial corruption

Supreme Court’s approach to judicial corruption and discipline relies heavily on symbolic gestures.

single judge of the Allahabad High Court passed ex-parte orders that the Bahraich based Waqf Board temporarily allot a portion of its land for a couple of months to the proprietors of a circus during an annual fair. This order was set aside by a Division Bench in the Allahabad High Court, which was then challenged by Special Leave in the Supreme Court. Justices Markandey Katju and Gyan Sudha Misra in the Supreme Court who decided Raja Khan v UP Central Sunni Waqf Board late in November last year observed that "something is rotten" in the Allahabad High Court and reversed the "outrageous and shocking order" of the single judge of the High Court. The court observed that it was likely that the single judge acted on extraneous non-judicial considerations. These are strong sentiments expressed in sharp words. The Supreme Court's newfound zeal to clean up the country and the institutions of government has finally turned its attention to its own house. In this essay I argue that the Supreme Court's approach to judicial corruption and discipline relies too heavily on symbolic gestures and too little attention to judicial craft and discipline.

In this column I focus exclusively on Honourable Justice Katju's recent decisions on the issue of compoundability of criminal offences. I will briefly analyse three decisions to show that the court's disregard of the constraints of judicial craft and discipline renders its decisions opaque and indefensible. One need not raise the specter of moral or commercial corruption to emphasise why the first step to restoring our court system to probity and legitimacy must be to respect the fundamental principles of adjudication.

In Gian Singh v State of Punjab (2010) the petitioner was accused under Section 120B and Section 420 of the Indian Penal Code. The petitioner sought to quash the First Information Report on the grounds that the offence had been compounded — compromised between parties. Section 320 of the Criminal Procedure Code distinguishes between the offences that may be compounded from those, which may not be compounded. The distinction rests on the nature and gravity of the offence.

However, the Supreme Court had rendered this statutory distinction irrelevant by allowing parties to compound offences that were listed as non-compoundable offences. Justice Katju was on the Bench in two of the three decisions referred to the court. The court in a sagely manner concluded that these decisions need to be reconsidered and recommended that the Chief Justice constitute a larger Bench to review these decisions. This belated recognition of error and the humility to correct oneself are praiseworthy judicial traits displayed in Gian Singh.

nfortunately, the story on compoundable offences does not end here. In Baldev Singh v State of Punjab (2011) the victim was abducted, raped by three men. They were convicted of the offences under Sections 376 (2) (g) and 342 of the Indian Penal Code and sentenced to rigorous imprisonment for ten years and a fine of Rs 1,000 each. The High Court upheld their sentence and the petitioners appealed to the Supreme Court. The petitioners and the victim had submitted a letter of compromise that there was no longer any misunderstanding between them. However, as Section 376 is a non-compoundable offence the petitioners were convicted and sentenced to the minimum sentence of ten years. However, Justice Katju and Misra took the view that existence of a compromise and the long duration at trial were adequate and special reasons under Section 376 (2) (g) for the imposition of a lesser sentence. Despite the contrition expressed by the same bench in Gian Singh a few months earlier that they should not be seen to be indirectly compounding non-compoundable offences, they proceeded to reduce the sentence to the period of sentence already undergone and increase the fine paid by each appellant to Rs 50,000.

In another case reported widely in the press (March 2011) the same Bench was called on to compound convictions of ten members of Samayanallur village in Tamil Nadu's Madurai district under the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989. The court in its interim orders emphatically rejected the invocation of the extraordinary powers of the Supreme Court under Article 142 to overcome the non-compoundable character of the offence in this legislation. The Court was reportedly concerned with the detrimental effect of compounding offences on the feudal mentality of those insulting Dalits, which could only be changed by sending them to the jail as a deterrent.

This three-part story on compoundable offences in the Supreme Court confirms that the gravest challenge before the Indian judicial system is not to identify and then discard rotten eggs. Instead, the Supreme Court must forge a return to basics: the court is a forum for principled adjudication based on legal rules that build a coherent and intelligible legal system.

A renewed focus on legal acumen and discipline is likely to yield far reaching judicial reform rather than any attempt to spot the rotten eggs in the judicial system.

 
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