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On Aug. 2, in a letter addressed to the prime minister, the chief justice recommended the impeachment of Judge Soumitra Sen of the Calcutta High Court. On Sept. 9, the chief justice permitted the CBI to interrogate Judges Nirmaljeet Kaur and Nirmal Yadav of the Punjab and Haryana High Court.

A judge accused of corruption and facing its consequences - impeachment or a criminal investigation - is nothing special. A corrupt public servant is not worthy to continue serving and is least desirable when serving as a judge in a court of law, a public office that demands scrupulous impartiality and untainted character. Anyone accused of a crime must be prosecuted and the crime must undergo investigation. The fact that the accused is a judge must not provide the person with any immunity.

So far, the Indian judiciary has been an untouchable “sacred cow” and continues to be so. Presently, there is no open process for the selection, promotion and dismissal of High Court or Supreme Court judges in India. The entire process is carried out according to the whims of the Supreme Court. All attempts to enforce accountability in the judiciary have been vetoed by the judiciary itself. There is also the absence of a political consensus on this issue. Thus, accountability within the Indian judiciary has been reduced to a disciplining process within the judiciary.

Whenever the public has raised concerns regarding the integrity of judges, either the judges in question were reportedly subjected to an internal inquiry or the judiciary persecuted those who raised the concern in the first place.

For example, the inquiry report concerning the allegation involving three judges of the Karnataka High Court has yet to be made available to the public, even though the inquiry that exonerated the three judges in question was completed in 2003. The accusation against Justice Y. K. Sabharwal, that his sons were deriving illegal profit from their real estate business by using to their advantage their father's position as a judge, faced a contempt of court action from the Delhi High Court. The court, however, refused the defendants’ request to use “truth” as a legal defense.

Judges have also expressed concerns regarding the lack of accountability of the judiciary. Justice J. S. Verma, a former chief justice of India, has said, "There is no point in saying that there is no corruption in the judiciary. No one is going to say it, much less accept it. One cannot go on sweeping it under the carpet and not expect it to show up. It is showing up now."

As of now, accountability of the Indian judiciary is dependent upon convention and traditions. When accountability issues arise, what is expected and believed to be done is an internal inquiry, which is shrouded in mystery. So far, none of these inquiries have seen the light of the day or been made available to the public. This attitude of secrecy has alienated the Indian judiciary from the general public. The ordinary citizen is forced to believe that the affairs of the judiciary are beyond their scope of knowledge and discussion.

In a country where a First Information Report in the case of a crime has the status of a public document, it appears that judges who commit criminal acts receive special treatment. Indian law, however, does not provide for discrimination in status among criminals.

Indian judges fit the scenario posed by Theodore Roosevelt: “A man who has never gone to school may steal from a freight car; but if he has a university education, he may steal the whole railroad.” Corrupt judges in India have stolen away the “truth and justice element” in the country’s justice process. This, however, is only a natural consequence of the lack of public accountability for an institution as important as the judiciary.

The very fact that a lawyer like Sen was appointed as a judge despite suspicions regarding his character illuminates the defects in the appointment procedure of judicial officers. What would happen if a judge disciplined within the system, outside the view of the general public whom the officer serves, refuses to accept the request of the chief justice to resign from the court? Will that judge continue to receive a salary from taxpayers' money? What would happen to the previous decisions he has made as a judge? Will they be reviewed on the grounds that the presiding officer was corrupt? If a litigant has suffered damages by a decision made by a corrupt judge, will the defaulting judge compensate the litigant? Will the judge still be promoted if his seniority in service so requires, as happened in the case of Judge Ramaswamy?

An error on the part of the media is to be noted in the context of this story. As happened in the Judge Ramaswamy case and in various brutal murder cases, the punished criminal is gradually blessed with the image of a victim. Public sympathy is unduly drawn in favor of the criminal. He is easily promoted to the status of a hero. And suddenly the paths of violence and crime are widened as a result of an incorrect play on sentimentalism by the media.

This is a common mistake on the part of the media, which is ethically bound to raise a higher sense of justice and thereby manufacture a healthy awareness in society, where ethical common sense is tragically being threatened by the everyday mythmaking of today’s mass media. A criminal is a criminal and not a victim. Punishment should have a therapeutic socio-cultural effect and a psycho-legal force to rehabilitate the criminal in a legal system.

Even in cases like that of Judge Sen, what if the Indian Parliament fails to impeach him? The chief justice will have to allow him to continue as a judge and he will continue receiving all his service benefits until he retires, as well as pension after retirement. Or, can it be assumed that the chief justice will lobby the parliamentarians, of which an estimated 40 percent are documented criminals, to ensure that the judge recommended for impeachment will be finally impeached? What if a corrupt judge facing impeachment also lobbies?

Most of these questions are issues haunting the Indian judiciary. Justice Verma also said that in a court of 20 judges, two by default are corrupt. This means that in the absence of any open accountability mechanisms within the Indian judiciary, the litigant as of now faces a 10 percent chance for a case to be decided by an officer who is unfit to be a judge.

It implies that the justice quotient of the Indian judiciary is only 90 percent. Accountability of any judiciary is fundamental to its independence. The Indian judiciary cannot be an exception.

In Sri Lanka and India, there is a saying, “A drop of cow dung is enough to render the entire pot of milk useless.” Corruption within the Indian judiciary is more than a drop of impurity.

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(Bijo Francis is a human rights lawyer currently working with the Asian Legal Resource Center in Hong Kong. He is responsible for the South Asia desk at the center. Mr. Francis has practiced law for more than a decade and holds an advanced master's degree in human rights law.)