Open to change

The United Progressive Alliance government has recently clarified that it is against the idea of a national judicial commission, which the earlier National Democratic Alliance government had proposed as a watchdog for the higher judiciary. It feels that such a commission would not be in conformity with the principle of judicial autonomy.

The law commission, in its 121st report of July 1987, had suggested the constitution of a national judicial service commission. The proposed commission would consist of the chief justice and three seniormost judges of the Supreme Court, the predecessor to the office of chief justice of India, three chief justices of the high courts in order of seniority, representatives of the Union law ministry, the attorney-general and an outstanding law academic. In 2002, the national commission to review the working of the Constitution too recommended the setting up of an NJSC.

Unfortunately, while the executive and legislative arms of the government have to answer to the people once every five years, the judiciary is accountable to nobody. A former chief justice of India publicly lamented that doubts can be raised about the integrity of 20 per cent of the higher judiciary. In the United States of America, judicial performance commissions have been appointed to deter improper conduct by judges and suggest ways to discipline them.

But does the chief justice, even of the Supreme Court, have any power to discipline a judge? Ruling on the famous V. Ramaswami case, the former chief justice, Sabyasachi Mukherjee, conceded that ?legally and constitutionally?, the chief justice had no right or authority to inquire into the conduct of a sitting judge of the Supreme Court. But as ?head of the judicial family?, he was duty-bound to ?secure the confidence of the public in the working of the judicial process?. Hence, Ramaswami was asked to ?desist? from discharging his duties until he was cleared of the charges against him. He was also advised to proceed on leave. Obviously, the disciplinary powers have limitations.

Judges in India are intolerant of criticism, however reasoned and justified they may be. To comment on the conduct of a judge can amount to contempt of court, entailing punishment. A few years ago, Eilert Stang Lund, a Norwegian supreme court judge, was surprised to hear that the Kerala high court had once sentenced E.M.S. Namboodiripad for contempt for talking about the judiciary?s class bias. The Supreme Court upheld the sentence in 1970. What is peculiar ? and disturbing ? in the Indian case is that judges sit in judgment on their own individual or institutional cause.

The sword of sub judice also hangs over many a public issue. It is too much to expect matters of crucial public interest to be kept out of the media and public debate till courts pronounce judgment, and that too after a considerable time lag. In truth, the provisions regarding sub judice and contempt can be invoked only when words or actions obstruct justice, impute motives to a judge or accuse him of self-interest.

True, the judiciary has long been viewed with suspicion. This turned into outright vilification by the entire nation during the Emergency. Confronted with their record during Emergency, when they refused to interfere even on malafide detentions without trial, the judges simply apologized.

Post-Emergency, the judiciary has slowly worked its way into becoming an institution of governance, which arrogates wide powers and responsibilities for itself in order to achieve public good. A fall-out of this, the public interest litigation movement has succeeded in establishing a link with discontented elements and giving them a voice in governance that they never had before. By the mid-Nineties, the essentially conservative Supreme Court had found itself at the centre of many issues relating to governance. Undeniably, the judiciary?s transition to an institution of governance has been possible because of the immense support it has received from the legal fraternity, the media and sections of society. It should not, therefore, feel that it is larger than the social forces that sustain its claims to prominence.

This brings us to the core issue of judicial accountability. The essential claim of judges is that they are repositories of justice and social values. And that if they fail to discharge their responsibilities, they become less an institution of governance and more an institution of state. Expectedly, therefore, once appointed, those selected ensure that judicial processes are fair, with PILs opening the doors to many more persons who turn to the judiciary to enforce the accountability of those in power.

Sadly, with instances of the growing irresponsibility and corruption of judges coming to light, high courts have been forced to examine complaints against the lower judiciary. The only way to deal with errant judges, presently, is to transfer them. But Supreme Court judges cannot be transferred like high court judges. They can only be removed by impeachment. And the only impeachment that took place ? that of V. Ramaswami ? fell through because Congress MPs abstained from voting on the motion.

Besides, the entire judicial system is overloaded and there are enormous delays. But given that the government is riddled with corruption and that atrocities by the state are on the rise, the judiciary has exercised much power of review over them. Obviously, a more exacting analysis of the judiciary itself is long overdue. The best course in the circumstances would be to appoint an NJSC mooted by the law commission, which would be empowered to select, transfer and remove judges. The Constitution may be suitably amended to bring these proposals into effect.

Currently, a Supreme Court collegium headed by the chief justice, R.C. Lahoti, and four senior judges as members is engaged in an exercise by the judiciary to set its own house in order. It has reportedly sent a notice to B.S. Reddy, chief justice of the Madras high court, who was recently transferred as chief justice of the Kerala high court, seeking his comments on the complaints against him. It has also sought comments from high court judges about whose conduct questions have been raised.

The concept of a collegium ? an in-house mechanism ? is not new. Earlier, during V.N. Khare?s tenure as chief justice of the Supreme Court, the mechanism was put to use when two high court judges had to resign because serious charges were levelled against them. But the moot question is whether serving judges can be an effective substitute for an independent broad-based commission. It is therefore rather strange that the law minister should speak out publicly against the formation of such a commission. Perhaps, the present government does not want to anger the judges.