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Published : December 14, 2011 | Author : Shalin
Category : Constitutional Law | Total Views : 7893 | Rating :

  
Shalin
Shalin Chaudhary Symbiosis Law School
 

Without courage, there cannot be truth, and without truth there can be no other virtue” - - Wavell, Viceroy Journal

Article 19(1) (a) envisages freedom of speech and expression. To this freedom, reasonable restrictions had also been added under Art19 (2) to safeguard the functioning of democratic organs. Also, this safeguard is to maintain the independence and integrity of the Judiciary and public confidence in the administration of justice.

Therefore, power has been specifically conferred on the Supreme Court under Art 129 as well as on the High Court under Art 215, to punish for its contempt.

The Contempt of Court Act 1971 punishes scandalizing of the court. The Supreme Court has held that the fundamental right of a citizen to free speech and expression has not abolished the offence of scandalizing the court.

However, of lately, this privilege of contempt orders is used by the court to suppress any voice which is raised against its functioning. Recent orders of contempt of courts highlight this issue. A strong criticism of judgments or a judge’s point of view is being regarded as contempt of court. Recent victim of these contempt orders are social activist Ms. Arundhati Roy and eminent lawyer of Supreme Court Prashant Bhushan. This is just an example of how the fundamental right of citizens and the power of democratic organ are misbalanced.

One of the basic elements of democracy is the accountability. The organs of democratic country are accountable to one another and this maintains a system of checks and balances. However, the system of checks and balances seems to be blurred by the separation of powers. The concept of “separation of power between the legislature, the executive and the judiciary” and “independence of judiciary”, a fundamental concept, have now been elevated to the level of the basic structure of the constitution and are the very heart of the constitutional scheme.

An independent judiciary is the sine qua non for a vibrant democratic system. The judiciary is the protector of the constitution and, as such, it may strike down executive, administrative and legislative act of the government. For Rule of Law to prevail, judicial independence is of prime necessity.

However, under the garb of judicial independence and from the weapon of contempt orders, the judiciary seems to be almost insulated from any kind of accountability and transparency. This has given rise to the presumption that judiciary is one of the most powerful organ having unbridled powers. These perceptions might be one of the reasons of the increasing cases of corruption in judiciary.

Unaccountability of judiciary has been posing a serious threat to the democracy and it leads to corruption. The only remedy, for any offence committed by a judge, is ‘Impeachment’. However, the impeachment process as prescribed in the Constitution has proved as unworkable. Therefore, the recent decision of the government to bring in the Judicial Standards and Accountability Bill provides us with some hope.

We shall further see the need for this bill, under the light of increasing cases of corruption and the drawbacks of the bill and how can it be made more effective.

Corruption In Judiciary
Lord Acton, once observed that "Power tends to corrupt, and absolute power corrupts absolutely.”
Judiciary in India is more powerful than any other organs. This is by virtue of its independence, non-accountability to anyone and almost impractical and unworkable mechanism for removal, which the Indian republic has witnessed in Justice Ramaswami impeachment motion.

However, when we claim ourselves to be a democratic republic nation, we do subject ourselves to accountability. The system of government, in India is based on separation of power, and by virtue of that, the organs of republic India is accountable to each other. However, the accountability of judiciary seems to be blurred by its concept of ‘Independence.’

Corruption has rotten the whole system of governance in India. No organ is spared from this menace, and judiciary is no exception to it. Some of the instances which disgraced the judiciary are:
· K. VEERASWAMI: The former judge of the Madras High Court was found guilty under the Prevention of Corruption Act, 1946, but fought his case in 1991 in the Supreme Court. The apex court in a later judgment held that a sanction from the CJI was necessary before a criminal case could be registered against a judge. This judgment was criticized as it contributed to the stiffness with regard to making a Judge liable for corruption.

· V. RAMASWAMY: Son-in-law of Veeraswami, was a judge in the Supreme Court when the Speaker of the ninth Lok Sabha admitted an impeachment motion brought by 108 MPs against him for financial irregularities committed during his term as chief justice of the Punjab and Haryana High Court. The motion was, however, defeated as Congress MPs stayed away in 1993. This first ever, impeachment case provided us the instance of how impractical the impeachment proceedings are. Despite a high-power inquiry committee of three eminent judges having come to the conclusion that Ramaswami was guilty of several acts of gross misbehavior which warranted his removal, the judge was still entitled to discharge judicial functions from the highest court of the land.
· A.M. BHATTACHARJEE: The chief justice of the Bombay High Court was forced to resign in 1995 after it was found that he had received Rs.70 lakh as book advance from a publishing firm known to have links with the underworld.

· AJIT SENGUPTA: The Calcutta High Court judge made it a routine to issue ex parte, ad interim stay orders on anticipatory bail pleas from smugglers having links with the Mumbai underworld. He was arrested in 1996 for F.E.R.A. violations after retirement.

· A.S. ANAND: As CJI, he was accused of using his position to get the subordinate judiciary to rule in favor of his wife and mother-in-law in a suit that had been barred by limitation for two decades. There was also a CBI probe after a dispute arose over his age in 2000. The investigation report was not made public.

Some of the recent cases, in which the judges are facing corruption charges are:
· Justice Soumitra Sen of Calcutta High Court: He was charged with the allegations of misappropriation of large sums of money, which he had received in his capacity as Receiver appointed by the High Court of Calcutta. He also misappropriated the facts relating to the investigation.

· Justice P. Dinakaran of Sikkim High Court{former CJ Karnataka High Court}: Misappropriation of assets.
· Justice Nirmal Yadav of Uttrakhand High Court { former judge Punjab and Haryana High Court}

· Provident fund scam: one of the biggest judicial scam in the history. More than 15 Judges of Ghaziabad court and also few of them from High Court are charged with embezzlement of more than Rs. 7 crore.
These are only some of the reported cases of corruption in judiciary, many of them still goes unreported. The main reason for this is the sword of contempt, through which judiciary has got unbridled authority without any accountability towards it.

All these cases and increasing demand of transparency in all organs of government, led to the passage of Judicial Standards and Accountability Bill. Now , we shall discuss the need for such law in detail.

Need For Judicial Accountability Bill
“Responsibility is the price of freedom.” A freedom or a right always comes with correlative responsibility or duty. Therefore when we argue or advocate for the independence of judiciary, we have to bear in mind that for their independence, they have to be accountable. But again the vital question remains as to whom they should be accountable?

The real need for this law might have felt in year 1991 itself, when the Supreme Court relaxed the investigation of corruption charges against a judge.{Veeraswami case}. It is the effect of this judgment that prevented the investigation and prosecution of many judges against whom there was documentary evidence of corruption, fraud, misappropriation, etc. Further, the constitutional provisions regarding the impeachment of judges, seems to be so inadequate and un practical, that till now not a single judge have been impeached, even after the sufficient evidence against them, in hand.

The growing cases of corruption and indiscipline among the judges seems alarming, in the absence of any workable provisions of any law. Therefore, this bill seeks to make the judges accountable to a certain extent for their acts and conduct in their official capacity. Although there do exists certain loopholes and flaws, which, if amended would make the bill more meaningful. The flaws of the bill are discussed later under this paper.

Transparency in the judicial organization and among the judges was very much demanded in the recent past. A need was felt that the judges should declare their assets. However, many judges of the higher judiciary have declared their asset voluntary, although, its reliability is still questionable.

Another point, to buttress the need of such law, is the response of Judiciary towards, Right to Information Act, 2005. This Act was enacted as a tool to effectively check corruption in our democratic system.
The other wings of our system, namely legislature, executive has been duly brought under the ambit of this act for all the purposes. Any information can be obtained from the departments of both of these organs. However, judiciary has kept itself aloof from RTI, for all the practical purposes.

Also, the Supreme Court has confirmed that decision of the of the Registrar General of the Court should be final and not subject to any independent appeal to the Central Information Commission. The former CJI even went to extent of saying that “any self respecting judge would not like the idea of any layman {third person} probing into the allegations against a judge and imposing punishment”. Therefore, keeping itself outside the purview of RTI, undermines the confidence of the public in judiciary, vis-a-vis the system of justice in the biggest democratic country.

Thus, it is clear that how the judiciary in our country is completely unaccountable to any other organ. It is covered under the layers of protection, and has also self insulated itself from the investigation into any criminal matter without the approval of CJI. This poses a threat to the democratic fabric of our country. In fact, in these conditions, the institution of justice cannot even be considered as democratic and therefore there is a need of a law which makes Judiciary accountable.

Before examining the provisions of the accountability bill, let us see some of the existing provisions of the Constitution and other law, which provides for several judicial processes.

Constitutional Provisions And Judges Inquiry Act
From reading the preamble of the constitution, it becomes evident that “Justice is placed higher than the other principles of ‘Liberty’, ‘Equality’ and ‘Fraternity’.
The task to secure justice has been specially assigned to judiciary, and this may be the reason, as to why there have been so much of provisions in the constitution regarding the independence of judiciary. The members of Constituent Assembly were very much concerned with the question of independence of judiciary and, accordingly made several provisions to ensure this end. The Supreme Court has itself observed: “The constitutional scheme aims at securing an independent judiciary which is the bulwark of democracy”. However, this independence has been misused by the judicial fraternity in number of circumstances as discussed above.

From the process of appointment, till the procedure for impeachment, almost all the provisions which was included in the constitution for better functioning of the judiciary, has been misused by the it.

Constitutional Provisions Regarding Appointment:
It is evident from the bare provisions that our constitutional makers did not wanted the appointment of judiciary exclusively in the hands of executive. Although it was clear that there should be effective involvement of the chief justices in the appointment of judges, but it was not clear as to who will have the last word in appointment. This created a lot of confusion when the regular course of appointment, {i.e:the senior most judge would become the chief justice} was broken. It led to First Judge case of S.P. Gupta V. Union of India, in which it was held that CJ did not have the last word in the appointment. However, this was overruled in the Second Judges case, Supreme Court Advocates on Records Association V. Union of India. In this case, it was held that the opinion of the Chief Justice of India, as a consultee would have to be final opinion which must prevail in the appointment of a judge. The opinion of the CJI is to be formed collectively, that is to say, after taking into account the views of his senior colleagues who are required to be consulted by him for the formation of his opinion. Thus through this judgment the executive element in the appointment process is reduced to the minimum and any political influence is eliminated.

This process of appointment is now settled. However, it is criticized as being arbitrary, adhoc and non-transparent. “A judiciary which has total control over its own composition would have a conformist outlook. Collegiums which decides the matter in secrecy lacks transparency and is likely to be considered a cabal. Prejudice and favor of one or other member of the collegiums for an incumbent cannot be ruled out”.

Recently, this appointment procedure, again raised a strong criticism, when Justice Dinakaran name has been recommended, along with four others by the Supreme Court collegiums for elevation as judges of the Supreme Court.

Provisions Regarding Impeachment:
The question of removal of a Judge before the age of retirement is an important one as it has a significant bearing on the independence of judiciary. The Constitution provides that High Court and Supreme Court judges cannot be removed except by impeachment. That process requires signatures of 100 MPs of the House of People or 50 MPs of the Council of States for its initiation. If a motion containing charges of serious misconduct with the requisite signatures is submitted, and admitted by the Speaker of the House of People or the Chairperson of the Council of States, an Inquiry Committee of 3 judges is constituted to hold a trial of the judge.

Only if he is found guilty, the motion is placed before each House of Parliament where it has to be passed by a 2/3 majority of each House.

Art 124(5) also provides that parliament may pass any law and lay down detailed procedure according to which the address of Impeachment may be presented and the charge of misconduct or incapacity, against the Judge, may be investigated and proved. Accordingly, the parliament enacted The Judges (Inquiry) Act, 1968. This Act was a legislative attempt to hold the judges accountable for their acts of omissions and commissions. An attempt was made to amend this act by way of Judges (Inquiry) Bill 2006. However this bill has now lapsed and the Judicial Accountability Bill 2010 seeks to replace the act.
The first ever impeachment proceeding under this law was that of Justice V. Ramaswami. Despite the motion for removal being passed unanimously by the members who voted, it failed to impeach, as the members of ruling party abstained themselves from voting.

This experience has shown that it is practically impossible to remove a Judge through impeachment even if one is somehow able to get documentary evidence of serious misconduct. The failure of motion raised certain grave question about the integrity of the judiciary and the administration of justice.
Currently, the impeachment proceeding is going on against Justice Soumitra Sen of the Calcutta High Court. The case of Justice Dinakaran of the Sikkim High Court (earlier in the Karnataka High Court) is under investigation.

Significant Provisions And Authorities Under The Proposed Act
The background and the need for the accountability bill have already been explained. There are some new provisions in the act which seek to address the prevailing situation of infirmity. The bill, if enacted will repeal the Judges’ Inquiry Act, 1958 or will have overriding effect on it.
The proposed accountability bill includes certain new and demanded provisions for maintaining discipline and transparency in the judicial organization. These are:
· Mandatory disclosure of assets and liabilities of not only judges, but also of their spouse, children and other near relatives.
· Certain activities of judges are prohibited and restrained keeping in view the code of conduct required to be maintained by them. Some of them are:
· A prohibition is been placed on keeping close association with a member of bar who practices in the same court.
· Family members, who are also the member of the bar, cannot use the judge’s residence for professional work.
· A judge also cannot hear or decide a matter in which his family or relatives are involved.
· Also, a judge cannot enter into public debate on any matter which he likely to decide.
The abovementioned provisions are only few illustrations of new changes been proposed to made into the judicial ambit.

A significant change will also be made in the process of removal of judges. The existing provisions for impeachment have been proved as unworkable and insufficient to remove a judge or punish him for his misdeeds. Let us now examine the existing provision and the proposed changes.

Under the existing law of Judges (Inquiry) Act, the complaint has to be filed by a Member of Parliament. The new bill provides that the complaint can be filed by any person. The complaint can be made to the Speaker of Lok Sabha or to the Chairman of Rajya Sabha. In addition to this, under the new bill the complaint can also be made to the Oversight Committee set up under the Act.

Authorities Under The Act
The bill recommends a complete new set of arrangement for complaint mechanism and procedures after that. However, this has been much controversial as regards to judicial independence.
The bill establishes three authorities, or we can say three steps for looking into the alleged complaints. These are:
· The National Judicial Oversight Committee;
· The Complaints Scrutiny Panel; and
· Investigation committee.

Let us now examine these authorities:
· National Judicial Oversight Committee: It will consist of a retired Chief Justice of India as the Chairperson, a judge of the Supreme Court, a Chief Justice of the High Court, the Attorney General for India, and an eminent person appointed by the President. The Oversight Committee shall have supervisory powers regarding investigation into complaints against judges, and also the power to impose minor measures.

· Scrutiny Panel: will be constituted in the Supreme Court and every High Court. It shall consist of a former Chief Justice and two sitting judges of that court. The Panel shall conduct an initial investigation into the merits of a complaint made against a judge. It shall also have the power to report frivolous or vexatious complaints. Persons making frivolous or vexatious complaints can be penalized by rigorous imprisonment of up to five years and fine of up to five lakh rupees.

· Investigation Committee: will be set up by Oversight Committee to enquire into complaints. The investigation committee will be set up if the Scrutiny Panel recommends that an inquiry should be carried out to investigate a complaint. The Bill does not specify the qualifications of members of the investigation committee, but leaves this to the discretion of the Oversight Committee.

Defective Composition
As we examine, the composition and the powers of each committee, we will find that it consists mainly of the members from judicial fraternity itself. This may again prove as an encumbrance in dealing with complaints effectively.

It is always that judiciary is never acceptable of any third person for any of the matter within its framework. The defense of judicial independence is always there with it. Even in the oversight committee, there is mention of only one “eminent person” and Attorney General. This “eminent” person may or may not be a judicial person. Even though s/he is not a judicial person, his opinion may not be of much weight age, as the majority decision of the committee will always be considered.

One of the biggest defaults in the composition of the committee is that, it consists mainly of the sitting judges of high court or Supreme Court. This leads us to the general believe that the opinion of the judge might be influenced by any political or extra judicial considerations. Moreover, we are already facing a crisis of lack of judges in the courts and because of this large no. of pending cases are also there. In these scenarios, appointment of any judge for this function is not feasible, as the function of investigation can be carried out even by administrative personnel also.

Another point of defect in the composition is that of the inclusion of a Attorney General. Attorney General represents the government in courts. It is possible that previously Attorney General might have appeared before a judge against whom allegations have been made. This will surely amount to conflict of interest.

One of the commendable things is that the scrutiny committee has to set up in each of the high court and also Supreme Court. However, the composition of this committee is even more dangerous. This committee shall consist of a sitting judge of that high court or Supreme Court. This judge’s opinion is bound to be influenced, when he is deciding the case against one of his colleagues.
Clearly, this composition violates the basic norms of equality and natural justice. For example, a thief cannot investigate into charges of another thief; similarly a judge should not decide or investigate into a case of another judge.

The composition of members of investigation committee is not mentioned in the bill. This again gives the independence and flexibility to include any person in the committee. No doubt, that this membership will also be politicized.

Loopholes In Draft

The accountability bill seems to be a savior, in those situations where other existing provisions to check the judicial menace, have failed.
However, a close examination of the provisions of the bill will reveal that the bill itself is not complete and it contains certain loopholes, which may be misused. The process for enquiry and investigation is weak.

One of the biggest flaws in the bill is the constitution of the committees under the act. The fellow judge who compromises of the investigating members might be influenced by some extraneous considerations. The power of investigation in the hands of fellow judges amounts to the conflict of interest. The judges are also over burdened with their task of adjudicating and this may seem to further overburdening him.
The accountability bill is also alleged to compromise with the independence of Judiciary, so much so that it allows any person to complain against judges. No doubt that this allegation has been made by members of judiciary itself.

The present process of impeachment requires the consent of more than 200 parliamentarians. This process ensures democratic aspect of impeachment. However, under the present bill, impeachment process can theoretically be done by one office or say one man only. This is not at all fair, democratically and also for judicial independence.

One of the most controversial provisions is the definition of the term “misbehavior”. Section 2(j) gives the definition of the term It reads as:
Misbehavior means:
· Conduct which brings dishonor or disrepute to the judiciary; or
· Willful or persistent failure to perform the duties of the judge; or
· Willful abuse of judicial office; or
· Corruption or lack of integrity which includes delivering judgments for collateral or extraneous reasons, making demand for considerations in cash or kind for giving judgment or any other action on the part of the judge which has the effect of subverting the administration of justice; or
· Committing an offence involving moral turpitude; or
· Failure to furnish the declaration of assets and liabilities in accordance to the provisions of this act; or
· Willfully giving false declaration of assets and liabilities under this act; or
· Willful suppression of any material fact, whether such fact relates to a period before assumption of office, which would have bearing on his integrity ; or
· Willful breach of judicial standards.

Although the definition seems to be exhaustive and includes almost all the aspect of the judicial misbehavior. However, by defining, the term misbehavior, it loses its flexibility. It means that although other acts or conduct by a judge, which may ultimately be regarded as corruption, if not included in this definition, will not be liable under this act.

Former CJ of Madras and Delhi High Court Justice Ajit Prakash Shah, said that, “By laying down a strict definition, the concept loses its elasticity and becomes both under-inclusive and over-inclusive. Over-inclusive, in the sense that 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 “misbehavior” that might not be covered by this provision.”

 The procedure for appointment of judges, was one of the matter which was criticized all over, for being an “in-house procedure” .The bill makes no effort to amend the existing provision of appointment of judges.

This bill does not really make the judges accountability to the public at large as it exempts the procedure of investigation and other documents from the purview of RTI. Clause 43 of the bill clearly exempts the operation of RTI, relating to all the documents, records and proceedings related to complaints, preliminary investigation and inquiry. Therefore this bill maintains the status quo with regard to any information being made public. This provision really hampers the credibility of the bill, as it is being excluded from the Transperancy law of India.

Therefore, considering these issues may be concluded that the bill is just an attempt to bring judicial accountability, through an enactment. Apart from few provisions, the bill fails to address the issue of corruption and accountability.

Prashant Bhushan, an eminent lawyer of the Supreme Court, described the Bill as a “cosmetic exercise designed to fool the people into believing that some kind of exercise was conducted by the government to clean up corruption in the judiciary.”

Conclusion:
Lord Woolf, the Chief Justice of England and Wales, in a article, said that, “independence of the judiciary is not the property of the judiciary, but a commodity to be held by the judiciary in trust for the public.”

The utmost importance is given to the judiciary in comparison with other organs of the republic. This is because of the reason that, the judiciary is established as the protector of Constitution, dispenser of justice and it also acts as a watch dog to other organs. But, in the changing times, the judiciary has lost its confidence and integrity among the public. The accountability bill, although suffers from certain drawbacks, it first time attempts to introduce judicial accountability, through the legislation.

However in the judiciary, the function may be both administrative and judicial. For example; appointment of the judges and staff in the registry, files in the court and their journey till its final disposal are all administrative. So the transparency in these processes does not call for interference in the judiciary and these may be open to public scrutiny. It is only the process of hearing and decision making a completely judicial. Therefore, for administrative and similar functions, the judiciary should not claim a complete immunity from RTI.

The question which remained unanswered is that to whom the judiciary should be accountable. Holding accountable is one thing, which is not difficult to achieve, but in this case the question is, “to whom”?
Accountability should always be towards the authority to which we are answerable. At the end, I’m critical of the Committee being setup under the Bill. Because of the composition of this Committee, the judiciary is only answerable to their fellow judges. In this context, the previous provisions regarding impeachment, which is provided in Art 124(5) seems much more complete

To avoid any prejudice, there should be an independent body, to investigate into any allegation against the judge. This independent body should also be entrusted with all the powers and functions as necessary for any investigation.

 Further, Impeachment process should be made more democratic and practical. It should involve votes from all organs of republic.
If the loopholes mentioned above are filled in, then this bill would be one of the historical legislation. Till then, we can only hope that the spirit enshrined in this bill should to taken to its true sense by all the organs of republic. 

References:
· “Judges and Judicial Accountability” Cyrus Das, K Chandra.
· “The citizen and Judicial Reforms” (Under Indian polity)” Dr. Subhash C. Kashyap.
· “Constitution of India” M.P. Jain. Fifth Edition.
· Judicial Accountability OR Illusion. The National Judicial Council Bill. By Prashant Bhushan
· Judicial corruption: Pulling Punches.Jay Bhattacharjee In The BUSINESS STANDARD / New Delhi November 28, 2010,
· Corruption in judiciary: Time for action. V. Eshwar Anand In TheTRIBUNE.
· Right to Information and the Judiciary. Prashant Bhushan.
· Extracts from the first S. Govind Swaminadhan Memorial Lecture at the Madras High Court on January 29,2010, as published in the Indian Express ON 4th February 2010.
· Judicial standards and accountability bill, The Hindu. March 29,2011 .Justice Ajit Prakash Shah
· Judicial accountability goes forward. “Civil Society” March 2010edition.
· Transparency Review. Journal of Transparency Studies, Centre for Media Studies.(CMS) April- May 2007 edition. Vol II. No.1

Cases Referred
· EMS Namboodiripad V. Nambiar {1970} 2SCC 325
· State of Bihar V. Bal Mukund Shah, AIR 2000 SC 1296
· A.C. Thalwal V. High Court of Himachal Pradesh, (2000)7 SCC 1,9
· AIR 1982 SC 149

Authors contact info - articles The  author can be reached at: shalin@legalserviceindia.com




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