By BISWARAJ PATNAIK, January 5, 2016 : Iconic Justice Anang Kumar Patnaik was doubtlessly the most deserving chief justice of India [CJI] candidate to have been wronged by wicked detractors who poisoned the collegiums subtly. Shockingly, after losing a battle against the state in a land grabbing case, the first Odia CJI Justice Ranganath Mishra had once said to the press ‘In India, it is very difficult to get justice !’

The second CJI from Odisha Justice Gopal Ballabh Patnaik did not get enough time to leave any footprints as he served for less than a month. Ranganath Mishra was a great lawyer but a defamed CJI for several unacceptable acts including desire to become a Rajya Sabha MP.

After a long time, Odisha is going to be proud yet again to have a son of the soil Dipak Mishra the 45th CJI in less than seven months from now. He was the least expected potential CJI from the Ranganath Mishra clan. He is the son of least known Pundit Raghunath Mishra, eldest brother of Ranganath’s. People had expected Ranganath’s two royally educated and trained sons to reach dizzy heights of glory in the legal community; but fate would have different designs in place- the sons could not achieve much as lawyers; the underdog of the family Deepak Mishra arose to become a super star judge while Ranganath’s sons burnt away as meteors quite prematurely.

Odias had felt miserable when Justice Anang Patnaik was denied his due. As most eminent citizens would say, including top judges like Justice Indrajit Mohanty, “He is so clean in heart and mind that shades of grey are strange things to him. Straight deals in absolute black and white are what he strongly believes in. Positive, genial and amiable that he is, he hates to speak ill of even those who have done harm to him”.

Justice B P Das was an adorable judge who was daring yet bar–friendly. He ensured maximum litigants got justice. He never bowed down to the Executive for favours like many of his community, seeking plots of land from the discretionary quota. He remained highly ethical because he knew the ‘doctrine of public trust’ as enshrined in the Constitution cannot be ignored. So when denied chief justiceship, he has a right to feel hurt publicly.

But blaming a potential CJI from his own midst for the injustice is considered hurtful. Many judges have brazenly appealed to the ministers for land out of turn on their official letterheads, which is both unethical and illegal. Samir Dey, Kanak Vardan Singhdeo as ministers have given away scarce land meant for the poor and deserving to several high-salaried, law–ignorant judges. The allegations brought against Justice B P Das seem to be flimsy– nay vague and formless, some so bizarre that even a fool would laugh them off.

The former Chief Justice of India V N Khare once said at an august gathering: “I have always maintained that discretion is the source of corruption and has to be eliminated. If there are financial implications [of the use of government land], the matter must be decided by a group of ministers, and not individual ministers or bureaucrats. If the discretionary power that is not governed by any rule or law and rests with a bureaucrat or minister, it will lead to corruption. Hundreds of applicants are made, but plots are given to a select few. Authority with discretionary quota may give it by virtue of your good looks. This is wrong.”

The judges come in for particularly heavy criticism for writing letters on official letterheads. Justice S N Dhingra of the Delhi High Court, says: “It is against our professional ethics. It is against all canons of judicial standards. I would say this is absolute corruption.

To prevent such corruption, elaborate guidelines have already been laid down by the Supreme Court [as part of] the judges’ code of ethics and circulated among all High Courts. It is clearly stated that judges cannot have direct contact with ministers or bureaucrats. It is an absolute case of conflict of interest. Judges enjoy a lot of discretion themselves. If they take obligations from a minister or bureaucrat, it will never be without a reason. It is bound to be a give-and-take process.

Judges have absolute discretion in giving or refusing bail. They have discretion on whether to issue a stay in a case or not. They have absolute discretion over the final judgment itself. In that case, if they take obligations under the discretionary quota of a minister or bureaucrat, the minister or bureaucrat in turn will take advantage of their discretion. Nothing comes free. These are not isolated cases.”

Discretionary quota property being passed on to children also draws reproach. Taking note of the series of events in Odisha, says former Delhi High Court Chief Justice AP Shah: “Judges being allotted plots via discretionary quotas is an unhealthy practice. It leads to conflicts of interest situation. Judges… should follow rules and norms as per law. There should be some strong provision on such practices in the Judicial Accountability Bill. This has to be part of the judicial ethics.”

Judicial corruption is invisible to citizens, because lawyers are trained and motivated to deny and cannot safely speak of it, because mass media corporations agree with judicial prejudice and live in fear of judicial whims, because non-lawyers cannot obtain the facts without prohibitive cost and effort, and because the infantile myth of judicial salvation has broad appeal and is propagated as an opiate by the mass media. Judicial corruption is discovered by those of its victims willing to do years of tedious research, and only they will speak of it.

Lawyers do not speak against judges, on whom they depend for income stability and success, and often aspire to be judges. The mass media are silent because they and their advertisers are big businesses in agreement with judicial prejudice, advised by lawyers, and dependent upon judicial whim for protection from libel suits. They do not investigate judicial corruption.

The persistent citizen can only see judgments written by the selected winner to sound plausible. The other facts and argument are costly to obtain, and mountains of cases must be studied in each area to see how rules are misapplied and facts fabricated, and how false “principles of law” are abstracted from bad precedents.

The motives of judicial corruption are the prejudices of wealth and power shared by judges, lawyers, and favoured parties; the concealed economy of favours between lawyers and judges; and actual bribes by indirect cash flows.

The prejudices common among judges and lawyers favour interests and parties with whom they share beliefs, circumstances of ethnicity, sex, or income, and aspirations of wealth, power, and prestige. Most struggle for upper class luxuries to measure up and overcome guilt: the grand residence, Mercedes, second homes and finest restaurant meals.

Rejecting as unprofitable the moral dedication which deserves respect, they pretend that money and power measure respectability, that people without those merit contempt, that their duty is to trash cases without lawyers, and see that big businesses, wealthy persons, and sometimes government agencies (in that order) win their cases regardless of the facts.

They do not criticize judges without major public pressure, and they do not defend constitutional rights against government or business unless the public is in rebellion. The many ordinary cases which do not trigger judicial prejudice conceal an underground river of prejudice. Law firms must match lawyers to the ethnicity and sex of the judge, and often try to match physiognomy, personality, and preferred style.

There is a concealed economy of favours and intangible benefits which influences judgments either through the judge or between opposing lawyers. ‘Lawyer favours’ to throw the case include technical mistakes, poor arguments, concessions, and omissions. ‘Judge favours’ include the means of corrupt judgment stated.

The least quantifiable corruptions are bribes by indirect cashflows via law firms, relatives, and seemingly unrelated transactions. Judges, lawyers, law partners, and their relatives and agents have many investments which may be more or less favourable if someone “owes one”, before or after a case has been thrown. A simple case is the judge’s relative with high-profit speculations such as land, art, or securities. Smaller cash flows buy false transcripts and critical secretarial errors such as lost evidence and delays.

The Judiciary is the last resort of the common man in distress of injustice. Now that judges are getting increasingly corrupt, the ordinary citizen is beginning to lose trust in the democracy we have. There is big talk, not murmur, about some ineligible judges having entered the temple of justice as lords who are no more ethical than the lords of the rings at circuses.

Justice Dipak Mishra

Justice Das may have been wronged; but blaming a brother judge at this juncture would only draw flak and his detractors would get violently active. He must imbibe the spirit of the great judge Anang Kumar Patnaik who wouldn’t give a damn to what befalls him due to the machinations of rogues. Odias have felt astoundingly proud this born hero of a judge without a plot of land doled out by any member of the Executive. All that he has is from his hard-earned money.

Let’s wait excitedly for Justice Dipak Mishra to head the Judiciary of India quite in the current year. That would make void the universal allegation that Odias are a ‘crab community’.