While I’ve often bemoaned the fact that most comparative constitutional law research focuses on Western countries, India does receive quite a lot of attention from scholars, mostly due to the Indian Supreme Court’s notorious activism and progressive interpretations of constitutional law. However, as my former Prof. Armin Rosencranz alleges in Environmental Law and Policy in India/Cases, Materials and Status, sometimes this activism pushes the court into policy decisions best left to the bureaucracy. Still, it has become a leader in progressive jurisprudence and a symbol that strong courts can exist and even thrive in a developing country.
Unfortunately, a recent article in Asia Times suggests India’s judiciary is not only as riddled with corruption as any in the developing world, but also that the problem has gotten worse. Prashant Bhushan, a lawyer with the Campaign for Judicial Accountability and Judicial Reform (CJAR), faces contempt charges for suggesting several justices are corrupt. Meanwhile, former Chief Justice K. G. Balakrishnan is facing criticism for refusing to require judges to disclose assets and bring the courts under the Right to Information Act.
While the article recounts other allegations of corruption, it is worth noting to things. First, the article gives the impression that corruption has increased since the early 1990s. I don’t know India well enough to speculate as to why this might be true, except perhaps to say that economic growth might have led to an increase in rent-seeking activities and opportunities for bribery.
Second, the incidents all seem to involve overbearing efforts by the Supreme Court to protect the judiciary’s reputation and privacy (e.g., contempt charges, Right to Information Act, disclosure of assets) as to any cases of overt bribery. This reminds me of Filipina journalist Marites Vitug’s depiction of the Philippine Supreme Court in Shadow of Doubt. This raises the question as to whether and to what extent judiciaries should be subject to the same intensive public scrutiny as other branches of government. A court’s only weapon is its reputation, so is free speech that permits unsubstantiated allegations of corruption more harmful when impugning a judge than a president?
Of course, this is not to deny that some cases of secrecy are simply intended to shield corrupt judges. But the issue bears further thought, especially when the U.S. Supreme Court refuses to allow television coverage of oral arguments.