INTRODUCTION
India’s democratic framework is dependent on its judicial system, which plays a vital role in maintaining the rule of law and rendering justice1. It is responsible for interpreting the Constitution, safeguarding human rights, and settling disputes fairly. This allows the judiciary to invalidate laws and actions that contravene constitutional principles through its power of judicial review thus achieving a balance between the three branches of government; legislature, executive and judiciary2. Such checks and balances are essential in curbing abuse of power and preserving democracy. Ethics in Judiciary are very important because they help maintain the integrity and independence of this arm of Governance. Judges have to demonstrate utmost decorum such as impartiality, fairness among others3. Nevertheless, there are many challenges facing this branch that threaten its ethical standards as well as its autonomy. Political interference is one issue that continues to worry many people for instance when it comes to influencing how judges get appointed, pressurizing them into making certain court decisions all manipulations directed at having things work out in their favour at any cost4. All these factors erode independence within the judiciary leading to unfair outcomes by those who happen to be favoured by authorities above justice. Judicial impartiality may be compromised due to personal or external prejudices. Judges could be involved.
THEORETICAL FRAMEWORK
It’s a minefield of added qualifiers and legalese, but without those clarifications it would be too easy to trip you up on some minor technicality. Judicial ethics can be defined as a sub set of the ethical system which comprises the rules of conduct to be followed by and some of the virtues needed by the judicial officers and judges. They are principles meant to promote good governance, neutrality and efficiency in the dispensation of justice. Some of the main principles of judicial conduct are; blind hearing, neutrality, impartiality, equality and fitness. A judge is expected to reach at a decision without any kind of partiality or improper connection with high sense of integrity in an unbiased manner without being influenced by any extraneous consideration or by any self-serving motives.
Judicial activism means the active role played by the judiciary in developing law and principle, laying down directions and guidelines and help in good governance ensuring social justice. In a way, when a society is not getting developed politically or socially (due to various reasons), it is up to the judiciary of that country to take up these issues in their hands. This kind of judicial interference becomes necessary for effective governance if the policy formulation was not working effectively or due to complete apathy of other two organs. Bias in the judiciary means that the judges have inaccurate or unfavourable. Mental images and are probably going to be influenced by these images in making their decisions. It exists in many shapes explicit, implicit and derived from individual sources, societal influence bias, organizational policies et cetera Hearings are the process through which judges will come at a conclusion and if these factors of bias is part of such a process then it turns out to be unfair and what we expect from fair justice is not met hence we say there is injustice.
Theoretical perspectives on judicial discrepancy
1. Legal positivism: Positivistic Teagle is a theory that makes the law and morality discrete its significant element. The perspective of this theory is that laws represent the codes that are made by human rulers and should be adhered to in their precise design, no matter how more or less their moral roots are. Legal positivism is defined as making legal arguments are to be supported only with rules and precedence’s from legal texts, while the personal values and historical situations are to be treated as irrelevant to the case. Where the principle of justice is in question, this school of thought tries to uphold the basic rules of the legal traditions and processes in court to make court decisions safer and more predictable5.
2. Critical legal studies: Critical legal studies are a theoretical framework that questions the traditional canon of law and states that the law is actually political and subjective. The advocators of this school of thoughts, on the one hand, argue that the law is not a pure or an objective instrument by itself. The law is shaped by the context of social, economic, and political forces. Therefore, according to this standpoint, the reasons for the incongruity in court cases are that the law is oppressed and exploitation in society influences the individual judgements and judgments which are usually of legal interpretation, which are not generally objective or fair. CLS calls for a more scrupulous look at the law’s role in perpetuating social inequalities and attempts to expose and address the underlying prejudices and power struggles within the legal system6.
3. Judicial independence theory: Judicial independence theory puts an accent on the idea of an independent judiciary as the only way to get justice which is not influenced by other factors and parties. The theory maintains that all possible action should be taken in favour of the judges including such actions as the provision for secure tenure, adequate remuneration, and transparent appointment processes. Judicial independence is crucial in the case of the rule of law and the preservation of public trust in the legal system. The viewpoint on different judicial opinions can be softened by enhancing the institutional mechanisms that defend judicial autonomy and through the promotion of a culture of integrity and accountability among the judiciary.
The theoretical tactics as an explanation of the qualities of the slope through which great extent can be seen the way to the analysis of the judicial discrepancy in the Indian judiciary. By learning of the meanings of judicial ethics, political influence and bias, and utilizing the wide range of theoretical perspectives that exist, we would be able to further delve into the very beginning and final results of the situation among the judges and the parties involved. This framework is designed for the analysis and the related researching sections, here in the research, suggesting suggested implement for efficiency in the Indian judicial system7.
LITERATURE REVIEW
A. Historical context of judicial system in India
The Indian judicial system has its roots in the British colonial era, with significant reforms occurring post-independence. The Constitution of India, adopted in 1950, established the modern framework for the judiciary, including the Supreme Court and High Courts8.
Austin’s seminal work “The Indian Constitution: Cornerstone of a Nation” (1966) provides a comprehensive account of the constitutional assembly debates that shaped the judiciary’s role in independent India9. Baxi’s “The Indian Supreme Court and Politics” (1980) offers insights into the early years of the Supreme Court and its evolving relationship with other branches of government10.
The post-emergency period (after 1977) saw significant judicial activism, as documented by Sathe in “Judicial Activism in India” (2002)11. This period marked the development of Public Interest Litigation (PIL) and the expansion of the court’s role in governance and social reform.
Recent works like Chandrachud’s “The Cases that India Forgot” (2019) have revisited landmark judgments, providing new perspectives on their long-term impact on Indian democracy and society12.
B. Previous studies on judicial discrepancy, ethics, political influence, and biases in India
Judicial Discrepancy:
Galanter’s “Law and Society in Modern India” (1989) was one of the early works to highlight inconsistencies in the application of laws across different levels of the judiciary13. More recently, Abhinav Chandrachud’s chapter “The Inconsistent Indian Supreme Court” in “Comparative Constitutional Law and Policy” (2017) provides a detailed analysis of discrepancies in Supreme Court judgments14.
C. Judicial Ethics
Judicial ethics in India have been extensively studied. Godbole’s “The Judiciary and Governance in India” (2009) provides a comprehensive overview of ethical challenges facing the Indian judiciary15. The “Restatement of Values of Judicial Life” adopted by the Supreme Court in 1997 has been a subject of analysis in various legal journals16.
D. Political Influence
The complex relationship between the judiciary and political institutions has been a subject of significant research. Mehta’s “The Rise of Judicial Sovereignty” (2007) examines the increasing role of courts in governance and policy-making17. Ramachandran’s “Judicial Supremacy and the Rule of Law” (2020) provides a critical analysis of judicial overreach and its implications for democratic governance18.
E. Biases in the Judiciary
Various forms of bias in the Indian judiciary have been studied:
Gender bias: Sood’s “Gender Justice Through Public Interest Litigation: Case Studies from India” (2008) examines how PILs have addressed gender discrimination19.
Caste bias: Galanter’s “Competing Equalities: Law and the Backward Classes in India” (1984) remains a foundational text on caste and law in India20.
Religious bias: Mahmood’s “Minorities and the Law” (1997) explores the treatment of religious minorities in Indian courts21.
F. Analysis of key findings and gaps in existing literature
Key findings from existing literature suggest that while the Indian judiciary has made significant strides in maintaining independence and integrity, challenges persist. Robinson’s quantitative analysis of the Supreme Court’s workload (2013) highlighted issues such as case backlogs and inconsistent application of laws22.
However, there are notable gaps in the existing literature:
1. Lower Courts: Most studies focus on the Supreme Court and High Courts, with less attention paid to lower courts where most citizens interact with the judicial system.
2. Interplay of Factors: There is a need for more comprehensive studies that examine the interplay between ethics, political influence, and biases in contributing to judicial discrepancy.
3. Comparative Studies: Comparative analyses between India and other democracies are relatively scarce. Seibert-Fohr’s edited volume “Judicial Independence in Transition” (2012) includes a chapter on India, but more such comparative work is needed23.
4. Impact of Technology: The impact of digital technologies on judicial processes and decision-making is an emerging area that requires more research.
5. Longitudinal Studies: There’s a lack of long-term studies tracking changes in judicial behavior and decision-making over extended periods.
6. Interdisciplinary Approach: Most existing studies are from legal or political science perspectives. There’s a need for more interdisciplinary research incorporating insights from psychology, sociology, and data science.
METHODOLOGY
A. Research design
The research design is quantitative since it depends upon the opinion of several expert opinions by distinguished judges, professors and several advocates. The aim of research design is purely subjective since it is based upon the ideas and thought processes of different people, it is somewhat differentiating since the rationale behind this idea of all people won’t be similar.
B. Data collection and analysis
An analytical survey was done among all strata s of people in the legal profession, i.e. judges, lawyers, professors and law students as well. Their idea and opinion was curated out from their statements and the rationale behind the thought processes about this entire episode of judicial discrepancy. The idea behind this empirical research is to collect the idea about judges owing their allegiance to a particular political party and issuing statements in favor of a particular political party while still being member of the judiciary. Upon the recently concluded case studies it has come to light that there should be an ideally a model code of conduct and judicial ethics which will govern the professional activity of judges and their behavioral approach towards the judiciary, as per the experts it is very much important for providing independence to the judiciary irrespective of the views pronounced by the judges, setting clear guidelines for ethical behavior helps in maintaining public trust in the legal system. It sets an example of promoting accountability aligning with international standards. Hence a certain code of conduct is fundamental in upholding the rule of law and ensuring justice is administered fairly without any kind of bias.
There are certainly both pros and cons on the aspect of judicial officers joining politics post-retirement as it creates an image of biasness towards a particular political party and reflects the mind-set of the judge which might affect the independence of the judiciary and its integrity, and should not be compromised at any stake, but on the other hand judges joining politics has certain benefits to the overall democratic structure of the nation as They bring valuable legal expertise and a deep understanding of the law, potentially contributing to more informed policymaking. Ethical Standard their background might promote higher ethical standards and accountability in politics.
A Judge when not holding an office of profit is under no legal or technical foundation to formally join a registered political party in the democratic system of our country. But immediate joining soon after demitting the office of judgeship, from the point of view of morality and ethics is alarming and no less shocking.
It has deep lied impact as an act on the part of the Judge that it would be having far reaching consequences and multiplies the effect on the subordinate organs of the government and other institutions. It creates a question on the mind of the citizens of the nation as to whether the Judge, while in office a few days before leaving it, propagating the ideas of the political parties he joined soon after leaving it. This would inevitably be the primary question dominating in the mind ordinary citizen of the country. Was then justice a political agenda of the Judge? This would be more evident if the decision of such a judge had been uniformly against the political party he had joined. A Judge cannot escape the normal human property of his active political beliefs while determining a case and this will have inevitable reflection in his dispensation of justice which is awfully disturbing. This is abuse of the process of court, not less than a crime, effecting in unending erosion of values is the probable estimation of public in the whole system.
Justice in a cloistered virtue and has to be preserved with care and caution. An independent, unbiased and upright judiciary is the wealth of a nation. Bias is the biggest enemy of a judge.
The immediate and ultimate consequences of joining a political party by a Judge soon after leaving the office defames, denigrates and destroys the faith in the judicial system- one of the principal pillars of democracy. The Judges are the main active participants in the game, are subject to their personal outlook, attitudes and idiosyncrasies. These human elements are an essential and integral part of the whole process which is cross connected between both the judiciary and the human beings who are being bound by certain judicial pronouncements.
However, discrepancies to what extent?
Of late, Indian judiciary as a whole has exhibited a kind and also an extent of discrepancies in its approach which is immensely wayward and lacklustre which are conspicuously divergent on equal, if not self-same issues, giving rise to a serious concern about the correctness of interpretation of the self-same points of law and constitution.
Law with all the rigors of procedural details, coupled with the strict rules of interpretation of the law of evidence as the essential ingredients are the only to introduce a degree of objectivity in the whole system, so that a litigant will not be at the mercy of the peculiar idiosyncrasies of an individual Judge.
In recent times such discrepancies have assumed an alarmingly dangerous height, quite often cases of similar nature are formed to be dealt with not similarly.
In some cases, the court exhibits its urge and eagerness to enlarge an arrested person or bail too early, professedly to vindicate the constitutional right of personal freedom of a citizen. In many other similar cases, the judiciary seems to be inactive and indolent, despite incorrect, inappropriate and unjust incarceration of so many other citizens and that too even after an ordinary longtime of sufferance.
Today so many people are arrested and sent to prison as undertrial prisoner contrary to the provisions of law.
The trick played by the police at the behest of the executive against certain targeted people, robbing the personal freedom of those individuals. Sadly, enough judiciary’s role in this regard is too private to shake the public confidence in the system- as a whole.
Needless to say, that apart from the enormous backlog of cases pending in different courts in India (about five crore and twenty-two lakh cases, as admitted by the minister of Law and Justice, Government of India, in the parliament), such discrepancies or rather dissimilar treatment in similar situation is evidently telling on the common people’s serve of justice and ultimately eroding the public confidence on the whole justice delivery system of the country.
JUDICIAL ETHICS IN INDIA
Judicial ethics in India are the foundation of the judiciary in ensuring that judges are imbued with the highest moral standard and strictly impartial at all times. The norms of these ethical codes are derived from the judicial Code of Conduct, which is a stripped-down manual for judges’ behaviour. The next of these theses is that judges must be kl take the oath of independence rights of lawfulness impartiality faithfulness and phase of standard attendance. It’s advocates for neutrality so that judges cannot only be but also look as they are away from the influence of any third party. The judiciary is the one to express gain, glory, funds, as well as social justice without any bias. Privately, the Cass of Conduct outlines direct the conduct and the behavior of judicial officers whereby every ethical issue is covered in it. Such principles president betrayal, freedom, overt but not the extreme, honesty, and hard working. This manual also points emblematic cases the load singe of the supreme should remain d be a think of the past. The text goes on to say that it is the supreme task of judiciary that the public confidence could be retained and the justice could be rendered with a view to equity only.
Given the provisions of the code of conduct, similar ethical questions may arise that an Indian judge has to face in his or her professional life. The primary issue is the weighing of the right to an independent judiciary with the requirement of accountability. Judges wrom whereas they neglect their independence if they influenced from the outfit, its people or even their relatives while making decisions. Simultaneously judges should also have answers to the society and the announcing legislation as they owe a duty regularly.
Ethics are those that are involved in all judicial processes which should follow a backbone; however, in India, there are such erudite and challenged. The political factor that develops a mechanism of appointment and transfer of judges in the higher courts is one of the major challenges. Judicial System has become such a stage that political interference can easily affect the judiciary’s identity of being an independent body such as decisions that are biased in favor of individuals to be over-impartial. It is wrong to say that judicial integrity and the leading of impartial justice are a miracle but we have the same challenges as well. Take an example of a case; these are the cases that are more likely to be postponed and then they put a lot of pressure on the Judges who in turn find it hard to expedite the process. This is because they are pressured from time to time to dispense with the cases, some of which would entail a more comprehensive and fair adjudication. The judiciary also faces threats to ethical values as a result of sporadic corrupt activities, which though barely found, are likely used by some judges and court officers to lose sight of the public trust and the maintenance of rule by law. Furthermore, the absence of a proper way that promotes ethics and does not allow the authorities to exceed their granted powers adds to the complexity in maintaining ethical standards.
A highly important aspect of judicial ethics is to develop a high level of defence along with many institutional factors which should protect both judiciary and, through accountability, help to regulate the government. This would imply for instance the transparent and meritocratic way of appointing judges. Besides developing the judges’ continuous ethical instructional program as well as the establishment of the mechanisms of ethical violations punishment. Through the removal of these obstacles and embedding the principles proposed by the Code of Conduct, the judiciary of India achieves the capitalization of the ideas of unity, justice, and impartiality, enriching thus the appreciation of the justice system by the public.
POLITICAL INFLUENCE ON THE JUDICIARY
India is known as the largest democracy in the world. All three parts of the Indian government are essential for the survival of democracy. Even though all the branches are meant to achieve different tasks, none is meant to have power over the others. There is skepticism that the legislature influences and controls the other two branches. This study will address whether or not the legislature really has a say in controlling the decisions of the judiciary, or if it holds no power, but is just an ornament. The Constitution of India envisions an independent judiciary based on the principle of separation of powers. Still, India’s political and legal history discloses an ongoing tug of war between government and the legal profession, where political pressure24 and bias have infected decision-making25.
The use of power and influence could be observed in the operation of the judiciary from the lower to the higher level(s). There seems to have been more influence in lower judiciary such as the tehsil-taluka courts and district courts but there also some of the cases that were experienced in this country where influence was also noticeable in the upper level of judiciary. Here more and there but the advantages of connections and through them the exploitation of the judicial process can be observed in this country. An incumbent High Court Judge known as C S Karnan was in May 2017 sentenced to six months’ imprisonment for making corruption allegations regarding the SC judges for the first time in India after SC formed a committee to find him guilty of the disobedience of the court. For instance, the Central Bureau of Investigations (CBI) accused a sitting judge from the Allahabad High Court’s (Lucknow bench) of bribery. Justice Narain Shukla for receiving unlawful favors examining a medical college he supported. These are a few cases where corruption inside the judiciary has been exposed. The judicial system’s general bad reputation is exacerbated by the frequent nationwide exposure of corruption and bribery at the lowest levels of the system. For example, three Telangana lower-level judges were detained in April 2018 for having more assets than their declared sources of income. Similarly, two lower-court magistrates in Gujarat were detained in 2014 on suspicion of collecting money to resolve cases when they were assigned to the Vapi court. Four of the justices serving in the Supreme Court called a press conference in January 2018 to highlight the court’s alleged corruption26.
Manifestations of Political Influence
Appointment and Transfer of Judges: The process of appointment and transfer of judges in Indian judiciary is not very simple and straight forward and contains both the elements of Executive as well as Judicial discretion. The various judiciaries of the country are headed by the President of India, who appoints both the judges of the Indian Supreme Court and High Courts; however, the list containing the nominees is provided by a group known as the collegium, which comprises other senior judges. Experts said that this system is not transparent and non-accountable and political factors can also affect the recommendation of the collegium. They give examples that reveal that judges who are penetrating in their observation of the government have either been locked out of the upper level in the judiciary or transferred to undesirable stations27.
Legislative Interference: The executive and legislative branches have been known to try and limit the judiciary through legislation at times. This may assume different dimensions through the passing of legislations that tend to curb the powers of the judiciary in delivering judicial pronouncements or in matters of policy interferences. For instance, in recent years, there has been a move to enact laws that would place checks on the judiciary especially in relation to rendering legislation unconstitutional. These attempts hold the doctrine of separation of powers principle of Indian democracy in suspense.
Media Trials: The media scenario in India occupies considerable political influence and there are emerging issues regarding Media trials affecting judiciary. Media may fuse the sensational aspects of the cases, coverage of which may be spiced up with outrage or some pieces of evidence may be given the limelight. This can foster what can be referred to as a public trial environment which may exert pressure on the judges and or tilt the balance of the trial28.
Direct Threats and Intimidation: Not very encouraging has been information that some of the judges received threats and intimidation physically or through social media. This can foster an environment of oppression, and self-censoring, and inhibit the judges from accepting such cases or making any rulings that the government or certain influential groups are likely to disapprove.
Consequences of Political Interference
1. Erosion of Public Trust: When public considers the judiciary as aligned to some political factors, then they lose the confidence they have in justice system. This might result to a feeling of disillusionment in the law and therefore a poor attitude towards the implementation of what the court says or orders. As you have noted, a weak judiciary also fosters a situation whereby influences and other individuals and groups feel free to perpetrate any wrong given the fact that they might never be held responsible for their actions.
2. Delayed Justice: That is why political interferences are undesirable, as they delay legal action against misconducts and injustice to the affected. Because judges are political animals, they may refuse to entertain sensitive cases or make rulings that will attract political influence. This can accumulate those cases and actually lead to victims waiting for some years before they can see their cases being solved. At times, political influence can completely compromise justice where innocent people end up in jail or deserving people are denied their say and justice.
3. Compromised Integrity: It becomes a cause for concern when the judiciary faces such influences for this compromises the integrity of the judiciary. Political interference compromises the independence of the judiciary within the society, and thereby its capability to deliver the rule of law. The philosophical position that suggests when judges are known to be influenced by the political side, it adversely impacts the minority recognizes the overall judicial system’s collapse. This in turn can create a feedback loop, making other gifted people avoid legal profession and thus causing the diminished quality of judges in the future.
4. Weakening of Democracy: The judiciary should be strong and independent for the democracy to flourishes. Being an independent body it has the responsibility of keeping an eye on the executive as well as the legislature to ensure that they observe the constitution. Political interference threatens this check and balance mechanism thereby centralizing power in the government and thus, the people have limited control over their government. This can sometimes culminate in the decline of democratic values and encouraging autocracy, this is because the power shifts to those few individuals that are in the Higher Learning Institution.
Later Controversies associated with the Collegium System
As reported by the Times of India, the Law Ministry of India stated to the parliamentary panel on employees, public complaints law and justice led by BJP Rajya Sabha MP Sushil Modi that the ‘less backward & minority representation for the bench in the coming generation’ is very much real as high percentage of HC judges appointed within 2018-2022 mostly upper castes. According to the TOI report the ministry released that the new existing collegium system has failed to address the social diversity issues in the higher judiciary as it was first formulated by the Supreme Court, More On this subject More Over the past three decades. On the same basis, 424 out of 537 appointments to high court in the last five years’ period belongs to the general category i. e., the upper caste candidates, 57 belongs to the OBCs, 15 belongs to the SC category and 7 belongs to the ST category respectively. (STs). According to the newspaper report, the ministry also said that the new 20 selected judges belong to which castes could not be known. In the light of the said study, union government has emphasized and marked “bias” against the OBC and disadvantaged communities, which while being dominantly contributing with over one third of the population of the nation has received mere 11% share in nominations. The law department told the panel that “it is the main responsibility of the SC collegium and the HC collegiums to address the problem of diversity and social justice on the procedure of selection to the constitutional positions.29”
Role of Government in Collegium System
Government interference is only effective, when the Apex Court has determined on the list of the judges to be recommended for promotion to the Supreme Court or the High Court. Thus, the government may later present the collegium’s judgments as unlawful and demand an explanation. If the panel continues to propose the same list of candidates, then the government has no other option but to hire them. The chapter comes to an end on the Collegium repeating a name ‘a bench of the Apex Court previously stated’ in a repetition that can hardly be deemed coincidental: ‘there cannot be an instance where suggestions are submitted and the government sits on them’ as it ‘frustrates the system. ‘Finally, The Union Minister of Law, Justice, and Corporate Affairs will forward the suggestions to the Prime Minister, who will consult with the administration says that there are a lot of pending cases because many of the judicial positions have not been filled yet. These posts will remain vacant till fresh structure is formulated, the Minister had said in the House during the winter session in December. On the other hand, the Supreme Court opines that the issue has arisen since the central government remained ‘sitting’ on the SC Collegium recommendations for years and months, some of which were reiterated by the Collegium30.
JUDICIAL DISCREPANCY IN INDIA
A. Definition and Manifestations of Judicial Discrepancy
Judicial discrepancy refers to deviations from expected judicial norms and principles, leading to inconsistencies and inequalities in legal outcomes. These discrepancies undermine the judiciary’s role as a fair and impartial arbiter of justice. Manifestations of judicial discrepancy include:
1. Inconsistent Judgments: Discrepancies occur when similar cases receive different verdicts without clear justifications. For instance, two cases with comparable facts and legal issues might result in divergent outcomes due to varying interpretations by different judges. This inconsistency undermines the predictability and reliability of the legal system.
2. Delays in Justice: Prolonged legal proceedings are a significant manifestation of judicial discrepancy. Delays can result from procedural inefficiencies, an overburdened judiciary, or deliberate stalling tactics by parties involved. Such delays erode public confidence in the judicial system and often lead to “justice delayed is justice denied.”
3. Selective Enforcement: This occurs when laws are applied unevenly, favoring certain individuals or groups over others. Selective enforcement undermines the principle of equality before the law and can lead to perceptions of bias and unfairness.
4. Corruption and Malpractice: Judicial officers engaging in corrupt practices, such as accepting bribes or showing favoritism, significantly contribute to judicial discrepancies. Corruption distorts judicial outcomes and diminishes the integrity of the judiciary.
5. Lack of Transparency: Opaque judicial proceedings and decision-making processes hinder accountability and foster an environment where discrepancies can thrive. Transparency is crucial for maintaining public trust and ensuring that justice is seen to be done.
B. Case Studies Exemplifying Judicial Discrepancy
The Sohrabuddin Sheikh Encounter Case:
Overview: Sohrabuddin Sheikh, a criminal, was killed in a police encounter in 2005, along with his wife, Kauser Bi. Allegations of a staged encounter and political involvement led to a high-profile investigation.
Discrepancies: The case saw several judicial officers being transferred or recusing themselves, raising suspicions of political influence. Key witnesses turned hostile, and despite substantial evidence, many accused were acquitted. This case highlighted the susceptibility of the judiciary to external pressures and the challenges in maintaining judicial independence.
The Aarushi Talwar Case:
Overview: Aarushi Talwar, a teenage girl, and her family servant, Hemraj, were murdered in 2008. The case attracted significant media attention and went through multiple investigative agencies and courts.
Discrepancies: Contradictory findings by the Central Bureau of Investigation (CBI) and conflicting court judgments reflected deep inconsistencies. The parents, initially acquitted, were later convicted and then acquitted again on appeal. The case demonstrated issues of investigative quality, media influence, and judicial consistency.
The Bhopal Gas Tragedy Case:
Overview: The 1984 gas leak at the Union Carbide plant in Bhopal resulted in thousands of deaths and long-term health issues for the survivors.
Discrepancies: The judicial process was marred by delays and perceived inadequacies in compensation. The lenient sentencing of company officials and protracted legal battles over compensation highlighted the judiciary’s struggle with powerful corporate interests and the need for timely justice.
The 2G Spectrum Case:
Overview: This corruption scandal involved the allocation of 2G spectrum licenses to telecom companies at throwaway prices, leading to significant financial losses to the exchequer.
Discrepancies: The initial acquittals of all accused in 2017, despite substantial evidence of corruption, raised questions about judicial independence and the potential influence of political and corporate powers. The case underscored the challenges in adjudicating high-profile corruption cases.
C. Factors Contributing to Judicial Discrepancy
1. Political Interference: The judiciary in India often faces undue influence from the executive and legislative branches. Political interference can lead to biased judgments and hinder the impartiality of the judiciary. Judges may be pressured to deliver favorable verdicts for politically connected individuals or to conform to the government’s stance on certain issues.
2. Socio-Economic Influences: The socio-economic background of judges and litigants can affect judicial outcomes. Judges from elite backgrounds may unconsciously favor litigants from similar backgrounds. Additionally, marginalized groups may face systemic biases that result in unfavorable judgments.
3. Corruption: Corruption within the judiciary, including bribery and other unethical practices, significantly contributes to judicial discrepancies. Corrupt practices can distort judicial outcomes, leading to partiality and undermining the integrity of the judicial system.
4. Case Overload and Delays: The Indian judiciary is notoriously overburdened, with a massive backlog of cases. This overload leads to delays in hearings and judgments, causing frustration and a lack of faith in the judicial process. Delays can also result from procedural inefficiencies and insufficient judicial resources.
5. Lack of Adequate Training: Judges in India often lack continuous professional development and training in contemporary legal standards and ethical practices. This can result in outdated or inconsistent interpretations of the law and contribute to discrepancies in judicial decisions.
6. Inadequate Infrastructure: Many courts in India suffer from poor infrastructure and resources, impacting the efficient functioning of the judiciary. Lack of technological support, inadequate courtrooms, and insufficient staff can hinder the timely and effective delivery of justice.
7. Public and Media Pressure: High-profile cases often attract significant public and media attention, which can influence judicial officers. Media trials and public opinion can create pressure on judges to deliver verdicts that align with popular sentiment, potentially compromising judicial impartiality.
ANALYSIS AND DISCUSSION
A. Relationship between judicial ethics, political influence, and biases in contributing to judicial discrepancy and its impacts:
Judiciary is considered to be the last standing institution which delivers hope and provides expectation to a common man. The judiciary is an independent institution which works freely and is not fettered by any shackles of political ideology and not bound by any political party. Judges being the office bearers are expected to be functioning with due diligence, integrity and upholding the constitutional values and ethics of the nation. Judges operating from such higher position are somewhat believed to be crucial stake holders of the democratic set up and any statement made by them during their tenure is considered to be of extreme importance and credibility. A judge’s vision and statements cannot be equated with a layman since he has the finest interpretation of the statutes and laws, so I believe that any statement made by a judge belonging from a lower court or may be the apex court made in light of any contemporary political incident in the nation should be carefully curated out and then delivered in the public domain, since its highly sensitive and common man can interpret in a different way and draw conclusion which is against the judicial standards and ethics. Judges work independently and they swear by the “Constitution of India” before joining service, it is mandate that any kind of judgements delivered will not indicate any kind of favouritism or biasness towards any member of any political party or to any political party if only they have been wronged in any incident.
The idea of “judicial Discrepancies” in its wider connotation, are not alien in the domain of justice delivery process. Rather discrepancies are a very common and inevitably natural and likely affair in the process of justice delivery system of any country, not to ascribe the same to India alone.
Unlike any physical science, law and justice, being more prone to social disciplines, do not assure an exactly same result with mathematical precision in a very similar situations and cases, it varies according to the situations based upon certain facts and evidences. It has already a stated fact that the public blindly depends upon the judiciary in cases of major of constitutional violations and expect judges to pronounce judgements in favour of the majority whose rights have being violated, but when certain political parties influence the judiciary and hence enhances their decision, the general public loses faith in judiciary and the whole idea of democracy is defeated and there rises judicial discrepancies. The confidence on the judiciary is shaken when judges show their allegiance towards a particular political belief and ideology, in certain cases even if any judge joins any political party post-retirement immediately or does take voluntary retirement and joins a political outfit the judge’s role is immensely doubted and is under the scanner of public eye, which henceforth creates a doubt for his pre-retirement judgements which might have made in light with a sense of certain kind of affinity and liking towards a political party. So, judges should refrain from making such lewd statements and expressing their affinity towards during their tenure of judgeship or even after retirement without a span or a break of significant time period.
B. Comparison with other countries’ experiences
UK: Merit and experience
Judges in the United Kingdom are selected by a process that gives weightage to merit and experience over any kind of political affiliation. The system relies on senior members of the judiciary and others who are acquainted with the judiciary to choose judges, whose “selection must be on merit”.
The UK judiciary’s “Guide to Judicial Conduct” states: “Any judicial office holder who is known to hold strong views on topics relevant to a case, by reason of public statements or other expression of opinion, should consider whether it would be appropriate to hear the case irrespective of whether the matter is raised by the parties. The risk will arise if a judicial office holder has taken part publicly in a controversial or political discussion.”
Judges in the UK are expected to avoid any appearance of political ties, e.g., by attending political gatherings, political fundraising events, contributing to political parties, or speaking at political fora. They are also expected to not participate in public demonstrations which would associate them with a political cause, diminish their authority, and cast doubt on their independence.
Judges are prohibited from running for Parliament under the House of Commons (Disqualification) Act, 1975.
US: A highly political judiciary
The American system places judicial appointments in the hands of politicians. The President appoints judges to the higher judiciary, and the appointments are confirmed by the United States Senate in what is most often a partisan vote.
US judges serve for life, and have well known political positions that may be conservative or liberal. A conservative or a liberal majority in the nine-judge Supreme Court often means the outcome of at least some cases can be predicted with a degree of certainty. The appointment of three conservative justices by President Donald Trump has resulted in a 6-3 conservative supermajority in the US Supreme Court.
However, Canon 5C of the American Bar Association Model Code of Judicial Conduct, 1990 prohibits judges from engaging in political activity except “on behalf of measures to improve the law, the legal system or the administration of justice”.
Canon 4 of the 2007 model code provides that a judge “shall not engage in political…activity that is inconsistent with the independence, integrity, or impartiality of the judiciary”. It does not include an express exception for political activity related to the administration of justice.
Singapore: Independence and competence
The Singapore Supreme Court’s Judicial Code of Conduct says that its legal system is founded upon the cardinal principle “that an independent and competent judiciary must interpret and apply the laws of the country and do justice without any fear or favor, affection or ill-will to the best of its ability.” 31
Also, “judges should conscientiously ensure that the level of their associations with members of the Legislature and/or the Executive, if any, do not give rise to any doubts about their independence or any unintended appearance that the Judiciary may be beholden to others in any way by such associations”.
POLICY IMPLICATIONS AND RECOMMENDATIONS
The policy implications and recommendations for addressing judicial discrepancy in India focus on three key areas: enhancing judicial ethics, reducing political interference, and addressing biases within the judiciary32.
To enhance judicial ethics, several reforms are necessary. First, the code of conduct for judges should be strengthened through regular reviews and updates to address emerging ethical challenges. This should include clearer guidelines on conflict of interest and recusal33. Transparency in judicial appointments and promotions needs improvement, with a more robust and transparent selection process that allows for enhanced public scrutiny of judicial candidates34. An independent judicial oversight body should be established to address ethical violations, with clearly defined composition and powers35. Additionally, mandatory ethics training for judges at all levels, including initial training for newly appointed judges and regular refresher courses, would help maintain high ethical standards throughout their careers36.
Reducing political interference in the judiciary requires several measures. The appointment process for the higher judiciary needs reform to reduce executive influence and strengthen the role of the collegium system37. The financial autonomy of the judiciary should be enhanced through separate budgetary allocations and mechanisms to ensure timely release of funds38. Stricter regulations on post-retirement appointments for judges, including a cooling-off period before accepting government positions and restrictions on political affiliations, would help maintain the perception of judicial independence39. Strengthening contempt of court laws, while balancing freedom of speech with judicial dignity, can also protect the judiciary from undue political pressure40.
Addressing biases within the judiciary involves multiple strategies. Promoting diversity in judicial appointments is crucial, ensuring representation of marginalized groups and implementing affirmative action policies in judicial selection41. Mandatory bias awareness training for judges should be introduced, focusing on addressing unconscious biases and improving cultural sensitivity42. Where possible, blind review processes should be implemented, anonymizing case details to reduce potential biases and using technology to facilitate unbiased initial assessments43. Regular audits of judicial decisions, including statistical analysis of judgments across demographic factors and peer review mechanisms for controversial decisions, can help identify and address bias patterns44. Finally, encouraging interdisciplinary collaboration in legal education, incorporating social sciences in law school curricula, and promoting continued education on societal issues for sitting judges can broaden perspectives and reduce biases45.
These comprehensive reforms and strategies aim to address the complex issues surrounding judicial ethics, political interference, and biases in the Indian judiciary. By implementing these recommendations, the integrity and effectiveness of the judicial system can be significantly enhanced, leading to greater public trust and a more equitable administration of justice46.
CONCLUSION
In conclusion, the exploration of judicial discrepancy in India highlights significant challenges within the judicial system, including inconsistent judgments, prolonged delays, selective enforcement, corruption, and lack of transparency, all of which undermine the principles of justice and fairness. High-profile cases such as the Sohrabuddin Sheikh Encounter, Aarushi Talwar, Bhopal Gas Tragedy, and 2G Spectrum cases exemplify the adverse effects of these discrepancies on public trust and judicial integrity. Factors contributing to these issues include political interference, socio-economic influences, corruption, case overload, inadequate training, insufficient infrastructure, and media pressure. To address these challenges, it is essential to strengthen judicial independence, improve training and education for judges, enhance judicial infrastructure, promote transparency and accountability, and implement stringent anti-corruption measures. These steps are vital for creating a more effective, equitable, and trustworthy judicial system in India. Future research should focus on longitudinal and comparative studies to further understand and mitigate judicial discrepancies, ensuring the judiciary upholds its role as a fair and impartial arbiter of justice.
*****
Footnotes
1. S.P. Sathe, Judicial Activism in India: Transgressing Borders and Enforcing Limits 1-10 (2002).
2. Marbury v. Madison, 5 U.S. 137 (1803).
3. Code of Conduct for Judges, Supreme Court of India (2018), https://main.sci.gov.in/pdf/coj/16thNovember20 19.pdf.
4. Prashant Bhushan, The Case that Shook India: The Verdict that Led to the Emergency 78-95 (1978).
5. Kermit Roosevelt, Judicial Activism, BRITANNICA (Jan. 17, 2018), https://www.britannica.com/topic/judicial-activism
6. Anjali Jena & Himanshu, Beyond The Bench: Navigating the Intersection of Judicial Discretion and Jurisprudence, The Society for Constitutional Law Discussion (Oct. 24, 2023), https://www.tscld.com/beyond-the-bench-navigating-the-intersection-of-judicial-discretion-and-jurisprudence.
7. Mitchell N. Berman, Judicial Discretion as a Result of Systemic Indeterminacy, 27 Can. J.L. & Juris. 69 (2014).
8. H.M. Seervai, Constitutional Law of India (4th ed. 1991).
9. Granville Austin, The Indian Constitution: Cornerstone of A Nation (1966).
10. Upendra Baxi, The Indian Supreme Court and Politics (1980).
11. S.P. Sathe, Judicial Activism In India (2002).
12. Chintan Chandrachud, The Cases That India Forgot (2019).
13. Marc Galanter, Law And Society In Modern India (1989).
14. Abhinav Chandrachud, The Inconsistent Indian Supreme Court, in Comparative Constitutional Law And Policy (Rosalind Dixon & Tom Ginsburg eds., 2017).
15. Madhav Godbole, The Judiciary And Governance In India (2009).
16. V.R. Krishna Iyer, Judicial Ethics – A New Dimension, 8 SCC J. 1 (1997).
17. Pratap Bhanu Mehta, The Rise of Judicial Sovereignty, 18 J. DEMOCRACY 70 (2007).
18. Raju Ramachandran, Judicial Supremacy And The Rule Of Law (2020).
19. Avani Mehta Sood, Gender Justice Through Public Interest Litigation: Case Studies from India, 41 VAND. J. TRANSNAT’L L. 833 (2008).
20. Marc Galanter, Competing Equalities: Law and The Backward Classes In India (1984).
21. Tahir Mahmood, Minorities and The Law (1997).
22. Nick Robinson, A Quantitative Analysis of the Indian Supreme Court’s Workload, 10 J. EMPIRICAL LEGAL STUD. 570 (2013).
23. Judicial Independence In Transition (Anja Seibert-Fohr ed., 2012).
24. K. Tyagi, The Doctrine of Separation Of Powers And Its Relevance In Time Of Coalition Politics, 69 Indian J. Pol. Sci. 620 (2008).
25. G.P. Tripathi, Legal Methods, Darbhanga Castle Prayagraj-2 (2019).
26. Vinod Surana, Allegation of Corruption in Judiciary, Lawyered (Nov. 19, 2022, 8:00 PM), https://www.lawyered.in/legal-disrupt/articles/corrup-tion-and-judiciary-dr-vinod-surana/.
27. Neerav Khare, Separation of Power and Rule of Law in India: Unswerving Deepening of Democracy, 4 Int’l J. Recent Res. Aspects 114 (2017).
28. International Commission of Jurists, International Principles on the Independence and Accountability of Judges, Lawyers and Prosecutors(Nov. 19, 2022), https://www.refworld.org/pdfid/4a7837af2.pdf.
29. The Wire Staff, Collegium System Has Not Improved Social Diversity in Higher Judiciary: Law Ministry the Wire (Apr. 9, 2023, 7:00 PM), https://thewire.in/law/collegium-social-diveristy-higher-judiciary-law-ministry.
30. Manu Sebastian, *Centre Not Entitled To Segregate Collegium Resolutions, Supreme Court Should Act Tough Against Executive For Sitting Over Proposals: Justice MB Lokur*, Live law (Apr. 23, 2023, 8:52 PM), https://www.livelaw.in/top-stories/centre-not-entitled-to-segregate-collegium-resolutions-supreme-court-should-act-tough-against-executive-for-sitting-over-proposals-justice-mb-lokur-211403.
31. Khadija Khatun, The Indian Express.
32. Arghya Sengupta, Judicial Independence and the Appointment of Judges to the Higher Judiciary in India: A Conceptual Enquiry, 5 Indian J. Const. L. 99, 102-105 (2011).
33. Justice J.S. Verma, New Dimensions of Justice 45-48 (Universal Law Publishing 2000).
34. Abhinav Chandrachud, The Informal Constitution: Unwritten Criteria in Selecting Judges for the Supreme Court of India 87-92 (Oxford University Press 2014).
35. Law Commission of India, Reform of Judicial Administration, Report No. 230, 35-40 (2009).
36. National Judicial Academy, Continuing Judicial Education: A Global Perspective 22-25 (2018).
37. Supreme Court Advocates-on-Record Ass’n v. Union of India, (2016) 5 SCC 1 (India).
38. Prashant Bhushan, The Case for Judicial Accountability, 47 Econ. & Pol. Wkly. 14, 16-18 (2012).
39. Madhav Godbole, The Judiciary and Governance in India 178-182 (Rupa Publications 2009).
40. Contempt of Courts Act, 1971, No. 70, Acts of Parliament, 1971 (India).
41. George H. Gadbois Jr., Judges of the Supreme Court of India: 1950-1989 205-210 (Oxford University Press 2011).
42. Jerry Kang et al., Implicit Bias in the Courtroom, 59 UCLA L. Rev. 1124, 1169-1186 (2012).
43. Oren Gazal-Ayal & Raanan Sulitzeanu-Kenan, Let My People Go: Ethnic In-Group Bias in Judicial Decisions—Evidence from a Randomized Natural Experiment, 7 J. Empirical Legal Stud. 403, 405-410 (2010).
44. Jeffrey J. Rachlinski et al., Does Unconscious Racial Bias Affect Trial Judges? 84 Notre Dame L. Rev. 1195, 1221-1226 (2009).
45. Martha Minow, Stripped Down Like a Runner or Enriched by Experience: Bias and Impartiality of Judges and Jurors, 33 Wm. & Mary L. Rev. 1201, 1214-1218 (1992).
46. Sandra Day O’Connor, The Quality of Justice, 67 S. Cal. L. Rev. 759, 760-763 (1994).