March 29, 2011 The Hindu
Judicial Standards & Accountability Bill
Ajit Prakash Shah
In a system where half the litigants must necessarily lose their cases and where most complaints against judges are frivolous, the Bill, if implemented, would mark the beginning of the end of the judiciary.
The last two decades have marked the extraordinary rise of India. This has however been tinged with cynicism about our major democratic institutions and a pessimism about their future. The judiciary, which till now has been looked upon as the strongest pillar of Indian democracy, has been beset with unprecedented problems. In recent times, the working of the judges of superior courts (High Courts and the Supreme Court) has come in for intense scrutiny and grave doubts have been cast against the conduct of some judges. The pressing call for greater institutional accountability in the Indian judiciary is now stronger than ever. It is in this light that Parliament's proposed Judicial Standards and Accountability Bill, 2010 must be seen.
This Bill appears to be a hurried and knee-jerk reaction to recent events, and has the potential to seriously undermine judicial independence. It seeks to devise a new "complaint procedure" under which any person may be able to file a complaint in writing against any judge of a superior court. Upon such a complaint being filed and examined, the Judicial Oversight Committee (proposed to be constituted under the statute), may either dismiss the complaint or make a reference to Parliament for the removal of the judge, issue advisories, warnings, withdraw judicial work or make a request for voluntary retirement.
The issue of Judicial Standards must be seen in the context of Art 124(4) of the Constitution which provides for the process of impeachment of a judge on the grounds of "proved misbehaviour or incapacity." Art 124(5) empowers Parliament only to make laws to regulate the procedure for presentation of address of impeachment, and for the investigation and proof for the misbehaviour or incapacity of a judge.
Cleverly disguised Bill
The present Bill, cleverly disguised as being permissible under Art 124(5), is an example of the most blatant violation of constitutional safeguards and is a cure that is surely worse than the disease. Article 124(5) does not empower Parliament to create any other forum for recommending impeachment proceedings, or allow complaints to be made by any person, or to make a judge liable for minor penalties. What can be done only by a hundred or more members of the Lok Sabha or fifty or more members of the Rajya Sabha (i.e. initiation of impeachment proceedings) can now theoretically be done by only one person.
It is true that judicial commissions exist in other countries like the U.S. and Canada, but their reach does not extend to the apex court. Also, adopting such structures from other countries without having regard to the unique conditions existing in ours, is untenable and fraught with the danger of destabilising our delicate constitutional balance.
Outlined below are some of the other major defects in the Bill:
Definition of misbehaviour: The Bill seeks to provide a straight jacketed definition of misbehaviour in Clause 2(j), but by laying down a strict definition, the concept loses its elasticity and becomes both under-inclusive and over-inclusive. Over-inclusive, that absent a de minimis exception, even a minor breach of judicial standards, say late filing of assets declaration, could constitute misconduct; and under-inclusive that to the extent that the definition is exhaustive (since it uses the word "means"), it is incapable of catching within its fold any "misbehaviour" that might not be covered by this provision. The Constitution framers had been careful not to define the term misbehaviour, let alone define it exhaustively. Implicit in this understanding was the belief that if the power of removal was vested in high constitutional authorities, they would be in the best position to judge when misbehaviour (or incapacity) had been occasioned.
Statutory provision for judicial standards: The Bill also provides a list of standards of judicial conduct to which all judges are expected to adhere. Sixteen of the 18 enumerated standards are derived from the "Restatement of the Values of Judicial Life" adopted at a Full Court Meeting of the Supreme Court on May 7, 1997. However, the very idea of statutorily providing for judicial standards, irrespective of their content, is violative of judicial independence.
A significant portion of litigation before higher courts today is public in nature and involves the State as one of the parties. Laws are also routinely impugned for their unconstitutionality. Given this, investing the legislature with the power to lay down and amend the standards which all sitting judges must adhere to (or risk the proposed penalties), has the potential to severely threaten impartial and effective adjudication.
Scheme of filing complaints: Under the Bill, "any" person may file a complaint in a prescribed format. Further, the proposed Judicial Oversight Committee will just act as a post-office and refer each complaint to a Scrutiny Panel. This is likely to lead to a multiplicity of complaints and even though the Bill proscribes false and vexatious complaints under Clause 53, this is unlikely to prove much of a deterrent, and since each of them will have to be checked by the Scrutiny Panel, it is also likely to result in a colossal waste of time.
Clause 18 provides that the Oversight Committee shall consist of five persons with two serving and one retired judge, an appointed eminent person and the Attorney-General of India. The presence of the Attorney-General on the Oversight Committee is highly suspect. The Attorney-General has the responsibility of regularly appearing on behalf of the government before the court. On occasions, the possibility of his appearing before a judge against whom a complaint has been filed cannot be ruled out. In such a circumstance, there is clearly a conflict of interest since the Attorney-General will be a member of the Oversight Committee to look into the complaints made against the former.
The Scrutiny Panel is to consist of three members, two of whom will be judges sitting in the same court as the judge against whom the complaint is made. Since these judges would be colleagues sitting in the same court, it is likely that this will, either way, influence their conduct. It would be difficult for judges to dispassionately decide a case against one of their own and sitting with them day in and day out.
Furthermore, the composition and tenure of the Investigation Committee which is to be constituted for the purpose of enquiry into misbehaviour by a judge is undefined. Theoretically, therefore, it is possible for a lay person without any knowledge, experience or standing to be a part of an inquiry panel against a sitting judge of a superior Court.
Minor punishments: The idea of "minor" punishments is unworkable and has the potential to seriously undermine judicial status. If sitting judges are issued advisories and warnings and thereby publicly censured, but still continue on the bench and decide cases, this damages the credibility of the entire system.
Atmosphere of secrecy: Through Clause 43, the Bill completely excludes the operation of the RTI. This establishes an atmosphere of total secrecy more regressive than the present system, and for which, there does not appear to be any rational reason to make a change.
It is totally impermissible for the legislature to strike upon the independence and fearlessness of the judiciary. A judge of a superior court cannot be treated as an employee of the government. The present Bill is incapable of salvage and must be rejected in totality. In a system where half the litigants must necessarily lose their cases, and where most of the complaints against judges are frivolous and made by disgruntled litigants, this bill, if implemented, would mark the beginning of the end of the judiciary.
Demands for change to existing systems in the judiciary must be met rationally, bearing in mind the objectives sought to be achieved. The first site of change must be in the process of judicial appointments. The present system where judges of the superior courts are chosen based on undisclosed criterion in largely unknown circumstances reflects an increasing democratic deficit. The legitimacy of the judiciary ultimately flows from public support, which cannot be maintained without a transparent and open selection process.
The guiding principle should always be this: accountability there is and must be, but let it always be commensurate with judicial independence and impartiality. Ultimately, the appropriate balance between competing principles must be found in something that is best suited to our constitutional setup and is, in that sense, uniquely Indian. The citizens of India deserve no less.
(Justice Ajit Prakash Shah is former Chief Justice of the Madras and Delhi High Courts.)
NEW DELHI, March 31, 2012 The Hindu
Lok Sabha passes Judicial accountability Bill
It provides for mechanism for investigation against judges
The Lok Sabha has approved the Judicial Standards and Accountability Bill, 2010, which provides for a mechanism for investigation against judges.
The approval came on Thursday amid din created by some Opposition members on a variety of issues.
The Bill, introduced in December 2010, was brought to the Lok Sabha with fresh amendments in December, 2011. This includes restraining judges from making "unwarranted comments" against the conduct of any constitutional authority.
According to the revised Bill, any judge who makes oral comments against other constitutional authorities and individuals would render himself/herself liable for "judicial misconduct."
Law Minister Salman Khurshid said the Bill seeks to set up a mechanism to enquire into complaints against judges of the Supreme Court or High Courts. It was aimed at striking a "balance" between maximising judicial independence and laying down accountability at the same time for members of the higher judiciary.
The Bill seeks to repeal the Judges Inquiry Act, 1968, but retains some of its key features like power to Parliament to impeach a judge of the Supreme Court or a High Court, the Minister said.
‘Independent body should enforce judicial accountability'
Special Correspondent The Hindu March 13, 2011
AGAINST CORRUPTION: Senior Supreme Court lawyer Prashant Bhushan speaks at a public meeting on ‘India Against Corruption,' organised by the Parivarthan India State Organising Committee, in Kochi on Saturday.
KOCHI: Prashant Bhushan, Supreme Court lawyer, campaigner against judicial corruption and leader of Parivartan India, said here on Saturday that the notion that the higher judiciary was free of corruption while the lower judiciary was corrupt was a myth.
“It is a self-serving myth created by judges in the higher judiciary and influential lawyers that while the lower judiciary is corrupt, the higher judiciary is free of corruption,” Mr. Bhushan told a meeting of the Kerala chapter of Parivartan India.
He wondered how the higher judiciary could be free of corruption when the lower judiciary was corrupt as the former had vast administrative control over the latter. He alleged that the High Court judges benefited from corruption in lower courts. Recalling the ‘PF scandal' at the Ghaziabad district court in which Rs. 7 crore was siphoned off from the Provident Fund accounts by four successive judges, Mr. Bhushan said a portion of the money was used by these district judges to buy expensive gifts for High Court judges and a Supreme Court judge. “Judicial corruption is a top-down phenomenon and not a bottom-up one,” he said.
Lack of accountability was the main reason for judicial corruption, he said. “India has a self-perpetuating judicial oligarchy.” Indian judges were among the most powerful in the world.
“They have enormous power, but no accountability,” he said. There was no law to make a judge of the High Court or of the Supreme Court accountable for his or her actions and there was no disciplinary authority to rein them in them. The impeachment provision was almost impracticable. The investigating agencies too were scared of judges.
The contempt-of-court law was being abused to ‘harass and intimidate' people who question judges' misconduct or corruption.
He said appointments, transfers and in-house decisions `black box' and no one was allowed to know what went inside it.
PUCL Bulletin, August 2002
-- By Rajindar Sachar
The former Chief Justice of India, S.P. Bharucha, seemed to be echoing the lament in Hamlet, "Something is rotten in the State of Denmark" when he moaned recently that the integrity of about 20 per cent of the higher Judiciary was in doubt. Article 124(4) of the Constitution provides for the removal of a judge only on the ground of proved misbehaviour or incapacity. The process of impeachment is cumbersome and the result uncertain. Effective alternative measures are necessary because in a democracy governed by the rule of law under a written Constitution the Judiciary has been assigned the role of a sentinel on the qui vive to protect the fundamental rights and to hold even the scales of justice between the citizen and the state.
There are credible complaints against the higher Judiciary. People talk with nostalgia of the not-so-distant past when, win or lose, the integrity of the higher Judiciary was never doubted. As the Supreme Court has said, "judicial office is essentially public trust. Society is, therefore, entitled to expect that a judge must be a man of high integrity, honesty and required to have moral vigor, ethical firmness and impervious to corrupt or venal influences."
Hundreds of years ago, Francis Bacon, in his essay on 'Judicature', emphasised that "the place of justice is a hallowed place; and therefore not only the Bench, but the foot pace and precincts and purpose thereof ought to be preserved without scandal and corruption." But such is the irony that Bacon disgraced himself by indulging in acts of bribery and favouritism at the fag end of his career. This highlights the complexities and the sensitivities in the matter of effective, implementation of judicial honesty.
It is correct that the Supreme Court has neither administrative control over the High Courts nor the power on the judicial side to inquire into the misbehaviour of a Chief Justice or a judge of a High Court. But that does not mean the judge is an absolute master, not answerable for his conduct except through impeachment proceedings.
The Supreme Court has ruled that the Chief Justice of India and two senior colleagues on being prima facie satisfied about the correctness and truth touching the conduct of a High Court judge inconsistent with such high office could proceed against him through a process other than impeachment. In such a case, the judge concerned could be offered the option of resigning or facing an inquiry. I know the alternative of permitting the judge to resign when there has been misconduct may seem like taking the soft option, but considering the place of the Judiciary in our Constitutional frame as the bedrock of the rule of law, I would, to avoid public embarrassment, frankly want to vote for this option unless it involves: an open atrocious misconduct which must be publicly disclosed to serve as a warning.
This Enquiry Committee will have the same personnel as is mandated for the impeachment proceedings, so as to inspire confidence about the impartiality of the proceedings. The plus point in this suggestion is that the constitution of a Committee of Judges to inquire into the misconduct could be initiated by the Chief Justice and his two colleagues and need not await the initiation by the Members of Parliament required for impeaching the judge, as mandated by the Constitution.
Such a mode did work when some years back the then Chief Justice of India posed this alternative to a High Court judge and a Chief Justice and they quietly resigned rather than face impeachment... That is why the idea of a National Judicial Commission has been mooted to deal with appointment of High Court and Supreme Court judges and other connected matters. Of course, the details and the personnel of the judicial commission need to be debated. I am however, convinced that the leader of the Opposition must be a member of the panel.
It is to be hoped that a commission will avoid the need for impeachment proceedings. Regarding removal, the Commission would remain a recommending body. Because, notwithstanding all the drawbacks, I am not convinced that removal of a High Court or Supreme Court judge should be through any method other than impeachment. I feel that removal from such high office should be publicly debated by the highest legislature, the representatives of the people, so that an assurance is given to the judge concerned that he is being judged by the people who in a democratic set - up are real sovereigns.
I also feel that the retirement age of the Supreme Court and High Court judges should be the same. If that happens, all this lobbying, etc., will stop because, barring the case of a judge who may have the chance of being the Chief Justice of India, there will normally be no attraction for a High Court judge in trying into move Delhi, which would involve dislocation of his/her family and normal pattern of life.
The appointment of outside judges as Chief Justices of High Courts has failed. I feel this practice must cease because by following it two infirmities crop up. One, that the new Chief Justices mostly hold office for a short period in the new High Court and are not able to make any imprint on their colleagues or the functioning of the Court. This practice also leads to heartburn because some are appointed Chief Justices of the bigger Courts and some to the smaller Courts on no explainable principle excepting as a rule of thumb - hardly befitting judicial objectivity. Two, I am against the policy of non-consensual transfers of judges from one High Court to another. This policy would weaken the bulwark of our Constitution - namely, independence of the Judiciary - for as Justice Douglas of the U.S. Supreme Court said, "no matter how strong an individual judge's spine, the threat of punishment - (read transfer) is the greatest peril to judicial independence -would project as dark a shadow whether cast by political strangers or by judicial colleagues".
I do not underestimate even for a moment the damage some judges have caused to the judicial institutions by their unethical conduct, but damage control will be better done by selective transfer rather through a general policy.
The transfer policy also gives rise to the syndrome of sycophancy and flattery. That is unfortunate because the High Court, like the Supreme Court, represents the same aspects of sovereignty.
If I sound a bit harsh, I can only invoke the caveat of Justice Holmes of the U.S. Supreme Court, who said, "trust that no one will understand me to be speaking with disrespect of the law because I criticise it so freely. But one may criticise even what one reveres... And I should show less than devotion, if I did not do what in me lies to improve it."