By Dilip Bobb
Andrew Jackson, who was president of the United States from 1829 to 1837, remarked that “All the rights secured to the citizens under the Constitution are worth nothing, and a mere bubble, except guaranteed to them by an independent and virtuous Judiciary.” His words have found a disturbing echo in the Justice Yashwant Varma case. There is a curious coincidence attached to the scandal and his subsequent transfer to his parent court. The bundles of cash supposedly recovered from Varma’s official residence found uncomfortable resonance when, on March 29, 2025, barely a week later, a special CBI court in Chandigarh acquitted former Punjab and Haryana High Court Judge Nirmal Yadav and four others in the “Cash at Judge’s Door” case.
In 2008, a bundle of notes worth Rs 15 lakh was allegedly delivered to the residence of another judge. After a prolonged legal battle spanning 14 years, a special CBI Court in Chandigarh acquitted former Punjab and Haryana High Court Judge Nirmal Yadav in the case amid grave allegations of bribery and corruption. The case gained scandalous proportions when the cash was delivered at the residence of another Punjab and Haryana High Court judge, Justice Nirmaljit Kaur. It was alleged that the money was meant to be sent to Justice Yadav, but was wrongly delivered to the other judge’s residence due to confusion over their similar names. The CBI court, last week, acquitted Justice Nirmal Yadav and the other accused persons on the grounds of lack of evidence and contradictions in witness statements.
The Varma case has, as many commentators pointed out, nudged open the door for a return to interference by the Executive in appointment of judges, the much-debated National Judicial Appointments Commission (NJAC). As a prominent contributor to this magazine and leading judicial scholar Upendra Baxi wrote: “There is currently plenty of evidence to suggest a constitutional diarchy at work, where the executive and judiciary together agree on the nominations, save when the Collegium reiterates its decision.” He did, however, give full credit to the Chief Justice of India Sanjiv Khanna’s decision to form the three-member inquiry into corruption allegations and the “bold move” to release all the details of the investigation on the website of the Supreme Court.
However, other members of the judicial family have not been so charitable. Rajya Sabha MP and Senior Advocate Kapil Sibal declared in an interview that “corruption, misconduct, partisanship, the judiciary has not responded to these issues institutionally. That is disturbing.” While his may be a personal view, there is, equally, the hard truth that with the media so openly compromised and parliament proceedings also dominated by the ruling party and its allies, the judiciary remains the last bastion of preserving democracy and the rule of law. The recent judgment on free speech shows that the apex court is still a valuable and cherished institution.
According to Diego Garcia-Sayán, the United Nations Special Rapporteur on the Independence of Judges and Lawyers: “Corruption has direct damaging consequences in general on the functioning of state institutions, and in particular on the administration of justice. Corruption decreases public trust in justice and weakens the capacity of judicial systems to guarantee the protection of human rights, and it affects the tasks and duties of the judges, prosecutors, lawyers, and other legal professionals. By seeking impunity, corruption has a devastating effect on the judicial system as a whole. One of the goals of human rights is to fight corruption and its implications on the administration of justice, as is to act against corruption through an independent and strong administration of justice. For this, the United Nations Convention against Corruption is a fundamental instrument for the protection of human rights. The report goes on to say that “corruption has a variety of faces, bribery being only one of them, another being political corruption, much more unattainable and imprecise.
Article 11 of the United Nations Convention against Corruption, a fundamental international treaty, emphasizes the decisive role of the judicial branch in the fight against corruption, and establishes that in order to carry out this role effectively, the judicial branch itself must be free of corruption, and that its members must act with integrity.
In 2016, the United Nations Office on Drugs and Crime launched a global programme to promote a culture of lawfulness. It includes the creation of a Global Judicial Integrity Network to share best practices and lessons learned on the fundamental challenges and new questions relating to judicial integrity and the prevention of corruption. This is an important step for the creation of a common language and a common perspective amongst different domains of the United Nations.”
There’s a broader meaning to judicial independence and integrity. The Hoover Institute, an American public policy think tank, says: “The law and economics of development focuses its attention on the effects that well-functioning legal and judicial systems have on economic efficiency
and development. Adam Smith states in his Lectures on Jurisprudence that a factor that “greatly retarded commerce was the imperfection of the law and the uncertainty in its application.” Entrenched corrupt practices within the public sector (i.e., official systemic corruption) hamper the clear definition and enforcement of laws, and therefore, as Smith stated, commerce is impeded.” Accountability in the higher judiciary is maintained through an “in-house mechanism”.
Under the established “in-house procedure” for the higher judiciary, the chief Justice of India is competent to receive complaints against the conduct of judges of the Supreme Court and the chief justices of the High Courts. Similarly, the chief justices of the High Courts are competent to receive complaints against the conduct of High Court judges. The complaints/representations received are forwarded to the chief justice of India or the chief justice of the concerned High Court, as the case may be, for appropriate action.
What is the process in other leading democracies to ensure judicial integrity and combat corruption? Under the United States Judicial Conduct System, judges are subject to investigation by Judicial Councils in their respective circuits. The presence of external review bodies ensures impartial investigations and oversight. In the United Kingdom, the Judicial Appointments Commission appoints judges based on merit, transparency, and diversity. The selection process is independent of political influence. In Australia, the Judicial Commission of New South Wales investigates complaints against judges and ensures judicial accountability and there is continuous monitoring and training to promote a culture of integrity. Singapore’s Judicial Integrity Standards means that judges follow strict codes of conduct and financial disclosure norms to maintain integrity.
In India, judges are not bound to make this information public, and in the majority of cases, they have not done so. In a meeting in 1997 chaired by then Chief Justice of India JS Verma, the Supreme Court adopted a resolution which stated: “Every judge should make a declaration of all assets in the form of real estate or investment held in their names, in the name of their spouses or any other person dependent on them, to the Chief Justice.”Later, in a meeting held on September 8, 2009, the full Bench of the Supreme Court resolved to declare the assets of judges on the court’s website, but added that this was being done “purely on a voluntary basis”. In an Indian Express report last week, as of March 1 this year, there are 770 judges in all the High Courts put together. Of these, only 97 judges from seven High Courts—Delhi, Punjab and Haryana, Himachal Pradesh, Madras, Chhattisgarh, Kerala, and Karnataka—have publicly declared their assets and liabilities. This amounts to less than 13 percent of all High Court judges.
The really bad news in the global context lies in the World Justice Project Rule of Law Index 2024 which reveals that India ranks 79th out of 142 countries. The Index shows a decline in the rule of law in 59 percent of the countries surveyed, marking the sixth consecutive year of global declines since 2016, with its score increasing slightly from last year. Regionally, India holds the third position among six South Asian countries after Nepal and Sri Lanka. Among lower-middle-income countries, India ranked 8th out of 38. Denmark, Norway, Finland, Sweden, and Germany top the list, while Venezuela, Cambodia, Afghanistan, Haiti, and Myanmar rank the lowest.
Other indexes are more encouraging. India is among 59 percent of countries that saw improvement in the Absence of Corruption factor. It ranked 60th globally, showing a slight fall in “Constraints on Government Powers”, indicating challenges in balancing executive power. However, India leads South Asia in Open Government, suggesting transparency improvements relative to the region. Despite that, India ranks dismally low (102nd) in upholding civil liberties. India’s rankings in civil and criminal justice also remain low, reflecting issues like delays, weak enforcement, and accessibility challenges. India’s performance in the WJP Rule of Law Index highlights areas needing reform, especially in protecting fundamental rights, curbing corruption, and strengthening judicial efficiency, despite some progress in transparency and anti-corruption measures.
AS the WJP report highlights, corruption can take many forms. The US, considered the template for rule of law and judicial independence, has been hugely embarrassed by the Justice Clarence Thomas affair. ProPublica broke the scandal about the connection between Supreme Court Justice Thomas and Harlan Crow, a real estate billionaire, conduct. Thomas and his wife boarded a private jet for Indonesia for “nine days of island-hopping on a superyacht staffed by a coterie of attendants and a private chef,” the reporters wrote. Chartering the yacht and plane alone could have cost over half a million dollars, but the Thomases weren’t footing the bill, the reporters found that Crow was. Almost every year for over two decades, Thomas has taken expensive trips courtesy of Crow, according to the investigation. “He has gone with Crow to the Bohemian Grove, the exclusive California all-male retreat, and to Crow’s sprawling ranch in East Texas,” the reporters write. “And Thomas typically spends about a week every summer at Crow’s private resort in the Adirondacks.” Those trips meant Thomas was in contact with powerful corporate executives, including from Verizon and PricewaterhouseCoopers, and political activists, such as “Leonard Leo, regarded as an architect of the Supreme Court’s recent turn to the right,” the reporters write.
“By accepting the trips, Thomas has broken long-standing norms for judges’ conduct, ethics experts and four current or retired federal judges said.” Crucially, those trips were not listed among Thomas’ annual financial disclosures, even though gifts worth over US$415 usually must be reported, the reporters found. Despite such disclosure rules, before the ProPublica investigation the Supreme Court did not have a formal ethical code of conduct. Additionally, the Court’s conservative super majority ruled 6-3 in Snyder vs United States, overturning the 2019 corruption conviction of an Indiana mayor who pocketed $13,000 from a local business tycoon after ensuring his company got a major town contract. The justices ruled that such bribes were not against the law.
In India, after the Justice Varma case, there is now increased scrutiny on the Supreme Court and other lower courts. The Global Anti-Corruption Blog (GAB), had written a critique of the India legal system which said that “the case backlog, and the glacial pace of Indian justice, is not only a crisis for the administration of justice but also a breeding ground for corruption. Given the extraordinary delays, those litigants who can afford to do so have strong incentives to pay bribes or use connections to get a faster verdict.” It goes on to say that while there are no easy solutions, India needs to adopt reforms to increase both the quantity and the quality of its lower court judges. It points out that India has a shockingly low number of judges per capita. Country-wide, India has about 21 judges per million people; by comparison, the US and UK have 107 and 50 judges per million people, respectively. And there is evidence from within India that the ratio of judges to population is correlated with the extent of judicial corruption.
The Law Commission’s recommendation, way back in 1987, was that India increase its judge-to-population ratio to 50 judges per million people. We are a long way from that goal. Another key point it raised was that India desperately needs talented, highly qualified law graduates to pursue judicial careers in the lower courts. Giving lower court judges more opportunities for advancement, along with higher salaries, would encourage bright and ambitious law graduates to apply for these vacant positions that so desperately need to be filled. Such changes would also motivate sitting judges to work faster and more efficiently.
In a fairly encouraging development along these lines, the Narendra Modi government recently revived its proposal for an All-India Judicial Service (AIJS), which would set up a national infrastructure to recruit, train, and promote lower court judges in a manner similar to the prestigious and hugely competitive Indian Civil Service (ICS), where salaries and benefits are much higher. The other encouraging sign is that even as the case backlog continues to rise, the conversation around judicial reform seems to be gaining more momentum. The ball is, literally, in the court.
—The writer is former Senior Managing Editor, India Legal magazine