The Telegraph
Wednesday , July 30 , 2014
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[+uc('Holding judges to account')+]

The chairman of the Press Council of India, Justice Markandey Katju, has done it again. The former Supreme Court judge has triggered a controversy by writing about a corrupt additional judge in the Madras High Court. He was not removed despite an adverse report on him by the Intelligence Bureau because he had the backing of a powerful political ally of the United Progressive Alliance government during its first term, he writes.

The issue has again put the spotlight on errant judges. In most cases, when a judge is found to have an unsavoury reputation, little action is taken. All that happens is that the errant judge is quietly transferred to a city where he is considered less likely to lean towards hanky-panky.

At present, a Supreme Court or high court judge can be dismissed only by impeachment, guaranteed under Article 124(4) of the Indian Constitution. “But impeachment is a very difficult process, not to mention a political one,” says Girish Patel, senior human rights lawyer of the Gujarat High Court. Not only does one have to prove the charges of “misbehaviour” or incapacity, a two-third majority vote in Parliament too is required.

The Judicial Standards and Accountability Bill, 2012, is slated to deal with this — but the bill keeps getting sent back to the stables. With Parliament in session again, the bill is back in the news.

The proposed law seeks to lay down standards of conduct for judges. Judges have to declare their assets and liabilities, and those of their family members. The bill, once enacted, will lead to the setting up of a National Judicial Oversight Committee, a Complaints Scrutiny Panel and an investigation committee. A person who wants to complain against the “misbehaviour” of a judge can approach the oversight committee.

The bill defines “misbehaviour” as conduct that brings disrepute to the judiciary, wilful or persistent failure to perform the duties of a judge, abuse of the judicial office, committing an offence involving moral turpitude or failing to disclose assets.

Its opponents, however, stress that the bill once again proves that some people are more equal than others. Rules for judges are vastly different from those that apply to a common man accused of a crime.

Everybody who participates either in the scrutiny, investigation or enquiry into a complaint against a judge, as a witness or in any other capacity, regardless of whether he seeks confidentiality, will have to give an undertaking to the oversight committee, scrutiny panel or investigation committee that he will not reveal his own name or that of the judge complained against, the contents of the complaint or any related documents to anybody including the media without prior written approval of the oversight committee.

Even RTI (right to information) applicants will not be able to access records, documents or proceedings of the investigation, unless the oversight committee — one of the powerful arms of the bill — thinks fit.

“Such privacy is the enemy of honesty,” Patel says. “It’s reasonable that some part of the investigation be conducted in camera, but not the whole trial.”

Of course, this is also an attempt to protect the complainant. If the complainant requests complete confidentiality, including from the judge he complains against, the oversight committee or scrutiny panel or investigating committee can issue a directive for protection.

The bill also gives the complainant immunity against contempt of court — the judiciary’s weapon of choice — once scrutiny into the complaint gets underway.

But the critics are wary of the role of the oversight committee. It will have on board the Chief Justice of India, a sitting judge of the apex court, the Chief Justice of a high court, the attorney-general of India and an eminent person nominated by the President.

“I would not trust such committees as they further judicial oligarchy,” Patel says. “Besides, most retired judges would avoid taking a stance against sitting judges.”

Justice (retired) Hosbet Suresh, formerly of the Bombay High Court, neatly sums it up. “It’s a quid pro quo,” he says.

The bill gives the oversight committee the power of a civil court. If it considers a judge’s “misbehaviour” to be serious, it can submit its findings to the central government for further action. But if it thinks his actions merit dismissal, it can request the judge to voluntarily resign, failing which the decision will be taken by the President and a two-third vote in both houses of Parliament.

But senior crime lawyer Majeed Memon has serious concerns about the committee. “Who can be trusted with absolute power in this country,” he asks.

Legal experts also believe that if judicial standards and accountability are to be truly raised, the all important issue of judicial appointments can’t be kept at bay.

Judges are at present appointed by a Supreme Court collegium — a group consisting of the Chief Justice of India and the five senior-most judges — for recommending names for the appointment of Supreme Court judges, and three senior-most judges for appointments in high courts.

“Nobody knows which lawyer has been recommended for judgeship by the collegiums,” Patel says. “All types of influences work. There is tremendous group rivalry among the lawyers lobbying for judgeship. When the name of a judge to be appointed gets leaked, the influential ones with godfathers in Delhi rush there and try to exert their political influence.”

Dismissing the bill as half-baked and badly drafted, Justice Suresh says: “A national judicial appointment committee should lay down criteria for the selection of judges. The appointment of judges by the collegium is unconstitutional. Nowhere in the world are judges appointed by judges.”

Legal luminaries recall the words of late Chief Justice J.S. Verma, who favoured a model code of conduct for judges, while pressing the need for a judiciary that stays untainted. “If we do not question ourselves,” Justice Verma had said, “people may enact a law empowering somebody else to question us.”