Research Directorate, Immigration and Refugee Board of Canada, Ottawa

1. Judicial Independence

Sources report that the judicial system in India is independent from other branches of the government (Freedom House 2012; Global Integrity 2011b, Sec. 80a; The Hindu 14 May 2012). This independence is established by the Constitution of India (ibid.; Global Integrity 2011b, Sec. 80a), which states that the "[t]he State shall take steps to separate the judiciary from the executive in the public services of the State" (India 1949, Art. 50). Media sources report that the judiciary has often clashed with the executive branch and made judgements against it (Weekly Sunday Times 12 Feb. 2012; India Today 29 Aug. 2011). The Hong Kong-based Asian Human Rights Commission (AHRC) provides several examples of Supreme Court cases in which the court instructed the state to uphold the rule of law on issues such as the rights of prisoners to be treated humanely and free from torture, rights against custodial violence and prevention of mistreatment by law enforcement agencies (21 Jan. 2013). The Indian government is reportedly the largest litigant before the courts (India Today 29 Aug. 2011; Global Integrity 2011b, Sec. 79a; The Hindu 14 May 2012). According to India Today, the federal government was a party in 800 cases before the Supreme Court between 2004 and 2011 (29 Aug. 2011). Global Integrity states that the government is "burdening the courts with repeated appeals even on settled matters" (2011b, Sec. 79a). Some sources indicate that the courts in India take on a role of judicial activism (Freedom House 2012; Weekly Sunday Times 12 Feb. 2012), which some describe as "judicial overreach" (India Today 29 Aug. 2011). However, some sources indicate that the judiciary may still be subject to political influence (VFF 12 Apr. 2013; Global Integrity 2011b, Sec. 80b).

2. Judicial Corruption

Sources describe judicial corruption in India as “widespread” (US 24 May 2012, 13; VFF 12 Apr. 2013) and “rampant” (Global Integrity 2011b, Sec. 78a). The AHRC states that corruption is problematic “within all tiers of the judiciary” (13 Aug. 2012), and that a large number of people who operate in the judicial system, including judges, lawyers, prosecutors and court staff are “corrupt to the core” (19 Oct. 2012). Some sources indicate that corruption is particularly prevalent in the lower levels of the judiciary (Global Integrity 2011b, 78a; Freedom House 2012; Outlook 9 July 2012).

According to Transparency International’s (TI) Corruptions Perceptions Index 2012, which evaluates societal perceptions of corruption, India ranked 94th of 175 countries, with 1 being the least corrupt and 175 being the most corrupt (TI 2012). On a scale of 1 to 100, with 1 being the most corrupt and 100 being the least corrupt, India scored 36 points (ibid.). In comparison, Canada ranked 9th with 84 points (ibid.). In an evaluation by Global Integrity, India received an overall corruption score of 70 out of 100, which is described as “weak,” its legal framework scored 87 points (“strong”), while the country scored 55 points (“very weak”) for implementation (Global Integrity 2011c). In a study by TI, in which 1,000 people were polled, 74 percent expressed the opinion that corruption had gotten worse in the three years prior to the 2010 poll (TI 2011, 6).

2.1 Bribery

Sources indicate that bribery is common in the judicial system (Outlook 9 July 2012; US 24 May 2012, 13; AHRC 19 Oct. 2012). According to the TI poll, 45 percent of people who had contact with the judiciary between July 2009 and July 2010 had paid a bribe to the judiciary (TI 2011, 12). According to TI, the most common reason for paying bribes in India in general is to “speed things up” (ibid., 13). A former chief justice of India, in an interview with the New Delhi-based news magazine Outlook, stated that, in the lower courts “everything comes for a price,” noting that there were “fixed” rates for a quick divorce, bail, and other procedures (9 July 2012). According to the AHRC, prosecutors who do not ask for and receive bribes for not opposing a bail application are the “exception” rather than the norm in India (19 Oct. 2012). The AHRC estimates that for every 2 rupees in official court fees, at least 1,000 rupees [about C$19 (XE 22 Apr. 2013)] are spent in bribes in order to bring a petition before the court (19 Oct. 2012). In a telephone interview with the Research Directorate, a legal researcher with Voices for Freedom (VFF) Asia, an international NGO with offices in India, the UK, Canada and the US (VFF n.d.a ) that advocates for legal accountability and human rights (ibid. n.d.b), stated that bribery is difficult to track since it can take the form of either money or favours (ibid. 12 Apr. 2013).

3. Judicial Backlog

India’s judicial system is described as “seriously overburdened” (US 24 May 2012, 13) and “severely backlogged and understaffed” (Freedom House 2012). According to the AHRC, there is a backlog of approximately 20 million cases in trial courts, 4.1 million cases in high courts, and 49,000 cases at the Supreme Court (21 Jan. 2013). Similarly, with respect to the Supreme Court, the US Department of State’s Country Reports on Human Rights Practices for 2011 (24 May 2012, 13) and the Telegraph (8 Apr. 2012) report that, as of June 2011, the number of cases pending was 57,179. The backlog in all the various courts throughout India is reported to be more than 30 million cases (Indian Currents 10 March 2013; US 24 May 2012, 13). The Chief Justice of India is reported to have said in 2010 that it would take 365 years to clear the backlog of court cases (ALRC 5 Dec. 2011, para. 5.3) Another Indian official is reported as saying it would take 320 years (US 24 May 2012, 13). Country Reports for 2011 indicates that, according to the Minister of Law, the average time for a case to get through the court system in 2010 was 15 years (ibid.). Similarly, in 2013, the AHRC estimates cases take between 10 and 15 years to go through the court system (22 Mar. 2013).

Sources report that there are approximately 13 or 14 judges per one million people in India (Outlook 9 July 2012; AHRC 21 Jan. 2013). According to the AHRC, in 2002, the Supreme Court, in a case brought by the All India Judges’ Association and others against the Union of India and others, directed the government to increase the number of judges from the existing 10.5 judges per million to 50 judges per million (ibid.). The AHRC notes that, in 2013, this directive has not yet been fully implemented due to a “lack of infrastructure, including the number of judges and facilities of judges to function,” as well as a lack of cooperation and funding from provincial governments (ibid.). The judiciary is reportedly allocated 0.4 percent of the government’s budget, which one Supreme Court judge described as “quite insufficient,” particularly amid plans to increase the number of courts, judges, staff, land and other infrastructure (Indo-Asian News Service 12 Jan. 2013). The AHRC also characterizes the resources allocated to the judiciary as “minimal” and claims that the judiciary is being “literally smothered out due to a lack of resources” (13 Aug. 2012). Similarly, Indian Currents, a weekly news magazine based in New Delhi (n.d.), states that the large number of pending cases is “suffocating the system which in turn promotes corrupt practices” (10 Mar. 2013). The Asian Legal Resource Centre (ALRC) states that the judiciary, lacking governmental support to address the backlog of cases, is “incapable of delivering justice” (5 Dec. 2011, Sec. 5.3). They expressed the view that

[w]hen the investigative limb of the state suffers from low morale, inefficiency and the lack of public appreciation and the adjudicative limb suffers from enormous amounts of delay and incapacitated to deal with the sheer volume of work; chaos, confusion and inefficiency is a natural consequence. Translating this into the context of maintaining the rule of law implies that injustice is the norm and justice an exception in the society. Drastic measures are required to bring an end to this ‘organised lawlessness’. (ALRC 5 Dec. 2011, Sec. 5.4)

Sources indicate that there is a high number of vacancies in the judiciary (Indian Currents 10 Mar. 2013; Global Integrity 2011a, Sec. 36b; India Today 29 Aug. 2011). According to Indian Currents, only 14,295 of 17,945 judge positions are occupied (10 Mar. 2013). Regarding the high courts, India Today reports that nearly 32 percent of judge positions are vacant (29 Aug. 2011). The AHRC notes that there are no high courts in the northeastern states of Manipur, Arunachal Pradesh, Nagaland and Tripura, so people there must travel to the state of Guwuhati to make appeals to the high court (2012).

3.1 Pre-trial Detention

The large number of pending court cases reportedly is a factor in the lengthy pre-trial detention of some suspects (US 24 May 2012, 12; Freedom House 2012; Global Integrity 2011b, Sec. 77c). Some sources note that many suspects are detained for longer than the sentence they would receive if convicted (Freedom House 2012; AHRC 21 Jan. 2013). In an example provided by Freedom House, in July 2011, after spending one year in detention, a 19-year-old was convicted of stealing 200 rupees, approximately $4, even though the crime typically carries a punishment of three months imprisonment (2012). According to Global Integrity, in 2009, there were approximately 250,000 people detained while awaiting their trials, which accounted for 66 percent of total inmates (2011b, Sec. 77c).

4. Judicial Appointments

Sources indicate that judicial appointments to the Supreme Court are made through a "collegium system" (India Today 29 Aug. 2011; Global Integrity 2011a, Sec. 36b; Hindustan Times 27 Aug. 2011) in which the judges are appointed by other judges (ibid.; Indian Currents 10 Mar. 2013). This system has reportedly been in effect since 1993 (ibid.; India Today 29 Aug. 2011). Several sources fault this system for being non-transparent (ibid.; Global Integrity 2011a, Sec. 36b; Indian Currents 10 Mar. 2013) and resulting in appointments based on criteria other than merit (ibid.; India Today 29 Aug. 2011), such as "nepotism" (ibid.; Indian Currents 10 Mar. 2013), or because of religion, caste or community (India Today 29 Aug. 2011).

5. Oversight of the Judiciary

The Constitution of India outlines the means by which a Supreme Court judge can be removed from office:

(4) A Judge of the Supreme Court shall not be removed from his office except by an order of the President passed after an address by each House of Parliament supported by a majority of not less than two-thirds of the members of that House present and voting has been presented to the President in the same session for such removal on the ground of proved misbehaviour or incapacity. (India 1949, Art. 124 (4))

The Judges (Inquiry) Act, 1968 outlines the procedures for investigating the misconduct of judges, which require a three-member committee consisting of two judges and one "distinguished jurist," who then refer the matter to Parliament if the judge is found guilty (India 1968; Global Integrity 2011a, Sec. 37c).

Although there are provisions for disciplinary actions against the judiciary, Global Integrity describes the existing laws and procedures as "inadequate" (ibid.). In practice, Global Integrity explains,

[t]here have been a number of cases involving judges against whom serious allegations of misconduct have been made. But it is very difficult to actually investigate and impeach a judge if the misconduct is established. The resistance comes from within the judiciary where the Supreme Court has been seen to push cases under the carpet to protect their turf or fearing adverse publicity. (ibid., Sec. 37e)

According to Global Integrity, judges charged with corruption "are almost always allowed to resign" before an inquiry is concluded, and only one judge, from a lower court, is known to have been convicted in a corruption case (ibid., Sec. 37f). Similarly, India Today indicates that no judge has ever been convicted of a crime, and only one judge was ever officially removed, in 1949 under the Government of India Act, and that was on the basis of his judgement (24 Aug. 2011). In a telephone interview with the Research Directorate, the interim executive director of the Asian Human Rights Commission said that, despite some "stark examples" of judicial corruption, there have been no successful impeachments of Supreme Court or High Court justices and that "the legal establishment is such that impeachment is impossible" (19 Apr. 2013).

Media sources indicate that the government does not have the power to call for an investigation into allegations of corruption within the higher judiciary, as such investigations fall under the authority of the Chief Justice of India (CJI) (Hindustan Times 1 May 2012; India Today 29 Aug. 2011). According to a 1 May 2012 article in the Hindustan Times, in the year preceding the article's publication, the justice department forwarded to the CJI 15 complaints against Supreme Court justices, 9 complaints against chief justices of high courts, and 51 cases against judges working in the high courts, but according to the article, the justice department was not aware of whether action had been taken in any of the cases.

There is reportedly no mechanism for individuals to file complaints against Supreme Court or High Court judges (The Pioneer 30 Mar. 2012). According to Freedom House, judges have charged several activists and journalists with contempt of court for questioning verdicts or alleging judicial corruption (2012).

Sources indicate that the high courts oversee the lower courts (AHRC 19 Apr. 2013; Outlook 9 July 2012). The interim executive director of the AHRC said that this allows for "a certain degree of accountability" within the legal system (19 Apr. 2013). In the interview with Outlook, the former chief justice of India explained that, because judges in the higher courts are understaffed and overburdened with work, they do not have sufficient time to monitor and inspect the lower courts (9 July 2012). He stated that inspections are pre-arranged, they are presented with a "rosy picture" and then they file the report (Outlook 9 July 2012).

5.1. Judicial Standards and Accountability Bill

Media sources report that the Judicial Standards and Accountability Bill was passed by the Lok Sabha (lower house of Parliament) on 29 March 2012 (The Hindu 1 Apr. 2012; The Pioneer 30 Mar. 2012; The Indian Express 8 Apr. 2013), but as of April 2013, the bill's progress in Parliament has been stalled (ibid.; AHRC 19 Apr. 2013). If passed, the bill would provide for a mechanism to investigate complaints made against judges of the Supreme Court or high courts (The Hindu 1 Apr. 2012; The Pioneer 30 Mar. 2012). According to the Pioneer, the bill proposes the establishment of the National Judicial Oversight Committee, the Complaints Scrutiny Panel and an investigative committee; any person would be able to make a complaint against a judge to the Oversight Committee (ibid.). In addition, the bill contains a requirement for judges to declare their assets and not to associate socially with lawyers who practice in their courts (ibid.; Hindustan Times 27 Aug. 2011). The bill also proposes charging judges who make "'unwarranted comments'" against other constitutional authorities with "'judicial misconduct'" (The Pioneer 30 Mar. 2012; The Hindu 1 Apr. 2012). A former chief justice of the high courts of Madras and Dehli, quoted in the Chennai edition of the Times of India, warns that involving parliament in oversight of the judiciary could "'undermine judicial independence'" (The Times of India 18 Mar. 2012). An article published in the Pune edition of the Times of India criticizes the bill for only providing to remove a judge, rather than initiating criminal proceedings (The Times of India 31 Mar. 2012). Regarding the bill, the interim executive director of the AHRC said that the issue of judicial accountability is a legitimate one, but that there is also a worry that the bill would bring in unnecessary political influence, which carries a risk of increased political corruption (19 Apr. 2013).

This Response was prepared after researching publicly accessible information currently available to the Research Directorate within time constraints. This Response is not, and does not purport to be, conclusive as to the merit of any particular claim for refugee protection. Please find below the list of sources consulted in researching this Information Request.

References

Asian Human Rights Commission (AHRC). 19 April 2013. Telephone interview with the interim executive director.

_____. 22 March 2013. "India: The National Dishonour in Judicial Hypocrisy." (AHRC-STM-069-2013) [Accessed 17 Apr. 2013]

_____. 21 January 2013. “India: Stop Blaming the Judiciary for Government’s Failures.” (AHRC-STM-026-2013) [Accessed 21 Mar. 2013]

_____. 19 October 2012. “India: Minister of Law and Justice Not Above the Law.” (AHRC-STM-208-2012) [Accessed 21 Mar. 2013]

_____. 13 August 2012. “India: Reform Dishonesty First.” (AHRC-STM-162-2012) [Accessed 21 Mar. 2013]

_____. 2012. The State of Human Rights in India in 2012. India: 12 Months of Underperformance, Neglect and Denial. (AHRC-SPR-005-2012) [Accessed 21 Mar. 2013]

Asian Legal Resource Centre (ALRC). 5 December 2011. “India: Human Rights Without Justice a Utopia.” (ALRC-UPR-13-003-2011) [Accessed 21 Mar. 2013]

Freedom House. 2012. “India.” Freedom in the World 2012. [Accessed 21 Mar. 2013]

Global Integrity. 2011a. “India - Scorecard 2011: Conflicts of Interest Safeguards and Checks and Balances: Judicial Branch.” Global Integrity Report. [Accessed 3 Apr. 2013]

_____. 2011b. “India - Scorecard 2011: Judicial Independence, Fairness, and Citizen Access to Justice.” Global Integrity Report. [Accessed 3 Apr. 2013]

_____. 2011c. "Scorecard 2011: India 2011." Global Integrity Report. [Accessed 3 Apr. 2013]

The Hindu. 14 May 2012. Arghya Sengupta. “Judicial Propriety in an Age of Scandal.” (Factiva)

_____. 1 April 2012. "Lok Sabha Passes Judicial Accountability Bill." (Factiva)

Hindustan Times. 1 May 2012. “Govt Sent 75 Complaints Against Judges in Past Yr.” (Factiva)

_____. 27 August 2011. "Objection, Your Honour." (Factiva)

India. 1968. The Judges (Inquiry) Act, 1968. [Accessed 16 Apr. 2013]

_____. 1949 (amended 2011). The Constitution of India. [Accessed 15 Apr. 2013]

India Today. 29 August 2011. "Who Will Judge the Judges?" (Factiva)

Indian Currents [New Delhi]. 10 March 2013. S.P. Talukdar. “Clogged Judiciary.” (Factiva)

_____. N.d. "About Us." [Accessed 19 Apr. 2013]

The Indian Express. 8 April 2013. Maneesh Chhibber. "Law Ministry Bills Stuck; Govt Reaches Out to Oppn." (Factiva)

Indo-Asian News Service. 12 January 2013. “‘Need to Tone up Judicial Infrastructure'.” (Factiva)

Outlook [New Delhi]. 9 July 2012. Chandrani Banerjee. “‘Corruption is Rampant in the Lower Courts'.” (Factiva)

The Pioneer. 30 March 2012. "Bill Provides Mechanism to Probe Judges Gets LS Nod." (Factiva)

The Telegraph. 8 April 2012. "PIL Punches Holes in Judiciary." (Factiva)

The Times of India. 31 March 2012. "Judicial Accountability Bill a Farce: Team Anna." (Factiva)

_____. 18 March 2012. "'Corrupt Judges Must Face the Music." (Factiva)

Transparency International (TI). 2012. Corruption Perceptions Index 2012. [Accessed 3 Apr. 2013]

_____. 2011. Deborah Hardoon and Finn Heinrich. Daily Lives and Corruption: Public Opinion in South Asia. [Accessed 3 Apr. 2013]

United States (US). 24 May 2012. Department of State. “India.” Country Reports on Human Rights Practices for 2011. [Accessed 21 Mar. 2013]

Voices for Freedom (VFF). 12 April 2013. Telephone interview with a legal researcher.

_____. N.d.a. "Profile." [Accessed 19 Apr. 2013]

_____. N.d.b. "Program." [Accessed 19 Apr. 2013]

Weekly Sunday Times. 12 February 2012. "India's Hyperactive Judiciary." (Factiva)

XE. 22 April 2013. "Currency Converter Widget." [Accessed 22 Apr. 2013]

Additional Sources Consulted

Internet sites, including: Amnesty International; Asian Centre for Human Rights; Asia Society; Commonwealth Human Rights Initiative; ecoi.net; Fédération internationale des ligues des droits de l'homme; Human Rights First; Human Rights Watch; India — Ministry of Law; Law Commission; International Crisis Group; United Nations — Refworld, Office on Drugs and Crime.