THE JUDICIAL STANDARDS AND ACCOUNTABILITY BILL: AN ASSESSMENT

[Vol 1/ Issue 2/ Apr 2015] [ISSN 2394-9295]

ABSTRACT

India being a democratic country rest on three pillars -Legislature, Executive and Judiciary. For the growth of any nation it is necessary that these three pillars must be strong, independent and unbiased. Our Indian Constitution ensures separation of powers among these three bodies. The judiciary, which is considered to be the prominent pillar of Indian democracy, is now under a veil of suspicion. The working of the judges of the Supreme Court and the High Court‟s has come in for strong scrutiny and momentous doubts have been cast against the conduct of some judges of superior courts. The judiciary being a superior institution, there arises a strong need for institutional accountability in the Indian judiciary. In the light of this the Parliament came up with a proposed Judicial Standards and Accountability Bill, 2010.In this context this paper will discuss the declarations made by the bill in detail and the mechanisms through which the bill can be enforced in reference to the constitutional face of it.

Keywords: Judiciary, Judicial Standards and Accountability Bill, 2010, Legislature, Executive.

INTRODUCTION

The Judicial Standards and Accountability Bill pay a call on enforceable standards of conduct for judges. It requires judges to declare their assets, also that of their spouse and children, lays down judicial standards, and establishes processes for removal of judges of the Supreme Court and High Courts. It provides for mechanisms where any person can complain against judges on grounds of misbehaviour or incapacity. The Bill intends to place on the Statute Book of the Nation an enactment providing for a complete Code on the following aspects-

1. To lay down judicial standards to be followed by all judges of Supreme Court and High courts and to provide for accountability of the Judges.
2. To establish credible and expedient mechanism for investigating into individual complaints for misbehaviour or incapacity of a Judge of the Supreme Court or of a High Courts
3. To regulate the procedure for such investigation
4. For providing of the presentation of an address by the Parliament to the President of India for removal of a Judge, and
5. To provide for connected or incidental matters.

The present Bill seeks to repeal The Judges (Inquiry) Act 1968 which was enacted with a view to lay down the procedure for removal of the Judges of the Supreme Court and of the High Courts, but which does not contain the mechanism for dealing with the complaints filed by the Public against the Judges for their misconduct or incapacity and has not set judicial standards the judges should follow.

CONSTITUTIONAL PERSPECTIVE

The Constitution of India provides that judges of the High Courts and Supreme Court can be removed only by Parliament on the basis of a motion in either the Lok Sabha or the Rajya Sabha.The existing procedure for investigation into allegations of misbehaviour or incapacity of Supreme Court and High Court judges is specified in the Judges (Inquiry) Act, 1968. Currently two cases are under investigation: Justice Soumitra Sen of the Calcutta High Court, and Justice Dinakaran of the Sikkim High Court (earlier in the Karnataka High Court). Before this the only case under this process was that of Justice Ramaswamy, but Parliament did not pass the motion to remove him.

In recent years, a number of allegations of corruption against members of the higher judiciary have been made. In 1997, the Supreme Court adopted resolutions on (a) Restatement of Values of Judicial Life, and (b) In-house procedure within the judiciary. A concept paper on a National Judicial Commission was prepared by the National Advisory Council in 2005. The Judges (Inquiry) Bill, 2005 was drafted by the government and examined by the Law Commission. The revised Judges (Inquiry) Bill, 2006 incorporated almost all the Law Commission‘s recommendations, and sought to establish a National Judicial Council (NJC). That Bill has however lapsed now. The striking features of the Present Bill under assessment is that it defines certain important Terms like

―Assets possessed by judge and his family members,

―Incapacity,

―Judicial Standards,

―Liabilities,

―Misbehaviour, etc. for the purpose of providing their comprehensive meaning which were missing in the earlier Act.The Present Bill under assessment has exhaustively Defined ―misbehaviour which means and includes, conduct which brings dishonour or disrepute to the Judiciary, wilful or persistent failure to perform the duties, wilful abuse of Judicial Office, corruption or lack of integrity or committing an offence involving moral turpitude etc. Special mention requires to be made to the fact that the failure to furnish the declaration of assets or liabilities in accordance with the Provisions of the Bill amounts to ―misbehaviour.

Thus Wilful suppression of any material fact even related to a period before assumption of office which would have a bearing on the integrity, has been made to fall within the purview of ―misbehaviour. This would not only oblige the Judge to make a disclosure of such facts, but the past deeds and actions of a Judge would be under the scanner. It seems the intention of the legislature by giving such wider meaning to the term misbehaviour is to inspire confidence and faith in the Indian judicial system which otherwise is gradually losing.

STATUTORY PROVISION FOR JUDICIAL STANDARDS

―Judicial Standards to be followed by Judges, a Charter of Ethics, enshrined in the present bill would insist that every Judge shall continue to practice universally accepted values of judicial life as specified in the Schedule to the Bill and provides for certain ―DON‘Ts. Accordingly, no Judge shall contest the election to any office of a club or society or hold such elective office except in a society or association connected with the law or any Court. No Judge shall have close association with the individual member of the Bar who practice in the Court in which he is a Judge and shall not permit any member in his immediate family to appear before him. The Judge shall not hear and decide a case in which a member of his family, close relative or a friend is concerned. The ―DON‘Ts list further forbids the Judge to accept gifts or hospitality, except from his relatives, to hear and decide a matter of a Company or a society in which he or any member of his family holds share or interest unless the same is duly disclosed and there is no objection to his hearing of the matter, to speculate and to seek any financial benefit in form of perquisite or privilege attached to his office. He shall not have bias in his judicial work or judgments on the basis of religion or race or caste, sex or place of religion. Bias attitude of a Judge is an important factor while observing the principle of natural justice. In the Bill ―Bias has been defined as would mean predisposition of a Judge, against or in favour of one of the parties. Bias becomes discernible more often when the entire decision making process is over and the verdict is delivered.

The Bill appears quite anxious to establish and put in place credible and expedient mechanism for investigating into the Individual Complaints for misbehaviour or incapacity of a Judge either of the Supreme Court or the High Courts.

SCHEME OF FILLING COMPLAINTS TO THE OVERSIGHT COMMITTEE

It is because of this concern that the Bill authorises any person, making an allegation of misbehaviour or incapacity, to make a complaint to the Oversight Committee, who shall refer the same to the appropriate Security Panel. The Panel on being satisfied, that there are sufficient grounds for proceeding against the Judge or otherwise, shall submit a Report to the Oversight Committee within a period of three months. The Panel has all the powers of the Civil Court under the Code of Civil Procedure. This authorization will enable the Panel, in brief, to summon the witnesses and to record their evidence. The Oversight Committee is to constitute an Investigation Committee to investigate into the Complaints, recommended by the Panel in its Report. The Bill, while laying down the Inquiry Procedure of the Investigation Committee, insists on framing the definite charge, on the basis of which the Inquiry is to be held and, on giving the Judge Reasonable Opportunity of Being Heard. During the pendency of the Inquiry by the Investigating Committee, the Oversight Committee may recommend stoppage of assigning the Judicial Work to the Judge. On the receipt of the Report from the Investigation Committee, the Oversight Committee, upon their satisfaction, may dismiss the Complaint or issue Advisories or Warnings to the Judge, but when satisfied that there has been a prima facie commission of any offence, may recommend to the Central Government for the prosecution of the Judge. But, where the Oversight Committee has been satisfied, that charge(s) has been proved and that they are of serious nature warranting the removal, it shall request the Judge to voluntarily resign, and on his failure to do so, advise the President to proceed for the removal of the Judge, and the President thereupon shall refer the matter to Parliament, which shall be laid before both Houses of Parliament. On laying of the advice, the Central Government may move a motion, in either Houses of Parliament, for taking up the said advice for consideration by the House.

Over and above the said provisions relating to the Making of Complaint by an individual, the Bill proposes to authorize the Members of the Parliament to give a Notice of Motion, for presenting an address to the President, for the removal of a Judge. The Notice given in the House of People should be by not less than one hundred Members of that House, while in the Council of States, should not be by less than fifty Members.

Upon the admission of the Motion by the Speaker or the Chairman, the same shall be kept pending, and the matter shall be referred to the Oversight Committee for constitution of an Investigation Committee, which shall have to follow the procedure and submit a Report. If the Report contains a finding that a Judge is guilty of any Misbehaviour or suffers from any Incapacity and, if the Motion is adopted by each House of the Parliament, in accordance with the Constitutional Requirement, the Misbehaviour or Incapacity of the Judge shall be deemed to have been proved and, an address, praying for the removal of the Judge, shall be presented to the President in the same session.

The Bill thus authorizes both the Individual Complainants and the Parliament to initiate and accomplish the Disciplinary Actions against the Judges. But in each of the methodologies the process appears to be lengthy and time consuming.

The consoling features are that the Security Panel, the Oversight Committee and the Investigation Committee have been given the powers of a Civil Court. This would facilitate the summoning and enforcing of the attendance of witnesses and examining them on oath, along with the discovery and production of documents. The Investigation Committee has been clothed with the Powers of Search and Seizure.

The proposed Constitution of the National Judicial Oversight Committee reveals that everything has not been made ―in house. The Attorney­General for India and an eminent person nominated by the President shall be on the board, bringing in the element of ―other than the judiciary. This would not only strengthen the functioning of the Committee but would inspire the confidence of objectivity amongst the people desirous of making the complaint.

Confidentiality and Exemption from RTI:

• The Bill prohibits participants in investigations against a Judge from revealing any information regarding the investigation or the complaint without the written consent or direction of the Oversight Committee. The Bill imposes penalties on those violating the confidentiality provisions. Anyone violating these provisions may be imprisoned for up to one month, and may also be fined.
• The Bill exempts documents and records of proceedings related to a complaint from the purview of the Right to Information Act, 2005.
• Proceedings of the investigation committee will not be open to the public.

Disclosure of Assets and Liabilities:

Judges will be required to declare their assets and liabilities, and also that of their spouse and dependent children. Such declaration has to take place within 30 days of the judge taking his oath to enter his office. In addition, every judge will have to file an annual report of his assets and liabilities. The assets and liabilities of the judge will be displayed on the website of the court to which he belongs.

KEY ISSUES AND THEIR ANALYSIS

There are certain key issues with regard to the Bill:

1. The composition of the bodies established to judge judges;
2. Whether provisions on confidentiality and penalties for frivolous and vexatious complaints deter persons from complaining against judges;
3. Whether minor measures can be imposed by a body comprising of non-judicial members, and
4. Whether judges should be able to appeal against orders removing them.
5. Whether the balance between independence and accountability is maintained by the proposed mechanism in the Bill. The Oversight Committee has non-judicial members which might impinge on the independence of the judiciary.
6. The Bill penalises anyone who breaches the confidentiality of complaints. It is questionable whether a penalty is needed for a frivolous complaint that remains confidential.
7. The Scrutiny Panel has judges from the same High Court. This is different from the in-house procedure of the Supreme Court.
8. The Oversight Committee has non-judicial members. The procedure of the Committee is not an in-house procedure of the judiciary. It is not clear whether the power of the Oversight Committee to impose minor measures is constitutionally valid.

AMENDMENT IN THE JUDICIAL STANDARDS AND ACCOUNTABILITY BILL

The Bill was introduced in Lok Sabha, the Bill was referred to The Department Related Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice for submitting its report on the Bill. The Department Related Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice under the Chairpersonship of Dr. Abhishek Manu Singhvi has presented its 47th Report on THE JUDICIAL STANDARDS AND ACCOUNTABILITY BILL, 2010 before the Rajya Sabha on 30th August, 2011 and the report was also laid before the Lok Sabha on the same date.The said report contains certain recommendations and the committee‘s opinion on the bill.

That in View of this opinion and recommendations of the committee the necessary amendment was affected in the Bill which is as follows:

AMENDMENTS (BY STANDING COMMITTEE)

Clause 3(2)(f) of the Bill bars judges from expressing views in public on political matters or matters which are pending or likely to be decided by the judge. A proviso to this clause states that it will not apply to ―views expressed by the judge in his individual capacity on issues of public interest (other than as a Judge) during discussion in private forum or academic forum . The Committee recommended that the proviso be redone to clearly articulate the meanings of ―individual capacity , ―private forum , and ―academic forum .The Amendment inserts the phrase ―so as not to affect his functioning as a Judge after ―academic forum .The proviso now states that the bar will not apply to ―views expressed by the judge in his individual capacity on issues of public interest (other than as a Judge) during discussion in private forum or academic forum so as not to affect his functioning as a judge .

Clause 3(2)- The Bill requires judges to practise universally accepted values of judicial life. Some of these include a prohibition on: (a) close association with individual members of the Bar who practise in the same court as the judge, (b) allowing family members who are members of the Bar to use the judge‘s residence for professional work, (c) hearing or deciding matters in which a member of the judge‘s family or relative or friend is concerned, (d) entering into public debate on political matters or matters which the judge is likely to decide, and (e) engaging in trade or business and speculation in securities.

Clause 3(2)(b)- No judge shall have close association with individual members of the Bar, particularly those who practice in the same court in which he is a judge.

Clause 53(1) is amended to reduce the punishment specified to up to 1 year rigorous imprisonment and a fine up to Rs 1 lakh.

A new clause (53)(3) is added to provide that ―No suit, prosecution or other legal proceeding shall lie against the complainant under this section in respect of anything which is in good faith done or intended to be done under this Act in accordance with the recommendation.

More consultations were organised by the National Campaign for Peoples‘ Right to Information (NCPRI), Media Information and Communication Centre of India, Inclusive Media for Change, Commonwealth Human Rights Initiative and the Accountability Initiative. Former Delhi High Court Chief Justice A. P. Shah, lawyer Prashant Bhushan, former Chief Information Commissioner Wajahat Habibullah and RTI activist Subhash Chandra Agrawal, besides NCPRI activists Shekhar Singh, Nikhil Dey, Venkatesh Nayak and Anjali Bhardwaj took part in the deliberations.The participants called for deletion of Sections 9 to 16 of the Bill dealing with the forming of a ―Complaints Scrutiny Panel besides the Oversight Committee. While Section 18 of the Bill envisages a five-member Oversight Committee to handle complaints received against judges, participants at the consultation differed with the Government on its composition, suggesting instead that a jurist and an eminent citizen selected through wider consultation be on the committee.

Justice Shah opined that the Complaints Scrutiny Panel which is proposed to be formed at the Supreme Court and at each High Court comprising serving judges to do preliminary vetting of complaints would not be able to function properly. Former Chief Justice S.H. Kapadia‘s cautionary advice also came on this bill that the independence of the judiciary must not be trampled upon by the process of making judges more accountable deserves serious examination. On the one hand, there is no doubt about the need for an alternative and more effective statutory framework to address complaints against judges, which have increased vastly in recent years. CONCLUSION

In my view it appears difficult at this juncture to appreciate the ultimate shape of the enactment when the Bill shall sail through the legislative process. But the present public perception sees the Bill as a positive step in the right direction, with a hope that experience would educate and teach us the ways and means to move towards a more beneficial and goal reaching legislation. However the proposed bill aims to keep a check on the conduct of the Indian Judiciary and making them accountable to the nation. The bill sets judicial standards and makes the judges accountable for their lapses. It is also mandatory for the judges to declare their assets and liabilities including those of their spouses and dependants. The bill is a step towards ensuring transparency, independence, impartiality and all above justice for all. Accountability must always be there.

It is necessary that the proposed bill should be strongly implemented as the corruption has extended its roots in the Indian judiciary. Time has come that this benevolent institution should be looked in closely and the proposed changes as stated by the Oversight Committee be ensured.

The Judicial Standards & Accountability Bill is the call for the hour to maintain the faith and trust of the citizens of India in the Institution of Judiciary, Law and Justice. We should undertake to make Judiciary free from corruption in our home country without compromising with the independent constitutional status of the judiciary. The Judicial Accountability Bill is definitely a step ahead to restore the fundamental values in the judicial system.

REFERENCES

1. Article 124 of the Constitution of India.
2. CBI gets Chief Justice nod to probe Nirmal Yadav Case, Hindustan Times, http://www.hindustantimes.com/CBI-gets-chief-justice-nod-to-probe-Nirmal-Yadav- case/Article1­594984.aspx; Justice Soumitra Sen to be impeached for misusing public funds, Times of India, http://timesofindia.indiatimes.com/india/Justice-Soumitra-Sen-to-be-impeached- for-misusing-public-funds/articleshow/6900744.cms.
3. Law Commission of India 195th Report on the Judges (Inquiry) Bill, 2005. January 2006.
4. ―A National Judicial Commission: Judicial Appointments and Oversight , Concept Papers, National Advisory Council, http://nac.nic.in/concept papers/Judicial_Commission.pdf.
5. Twenty First Report on the Judges (Inquiry) Bill, 2006. Department-Related Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice, 17th August 2007.
6. Section 12 of the Contempt of Courts Act, 1971.
7. C. Ravichandran Iyer v. Justice A.M.Bhattacharjee, 1995 (5) SCC 457.
8. Sarojini Ramaswamy v. Union of India (1992) 4 SCC 506 (Para 78).
9. http://www.prsindia.org/ (PRS Legislative Research).
10. www. Orfonline.org. (observer Research foundation).
    1. Judicial accountability or illusion the national judicial council bill by Prashant Bhushan.
11. Zee News.com.
12. The 47th Report on THE JUDICIAL STANDARDS AND ACCOUNTABILITY BILL, 2010 presented by Department Related Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice under the Chairpersonship of Dr. Abhishek Manu Singhvi before the Rajya Sabha on 30th August, 2011.
13. Notice of Amendments presented in Rajya Sabha on dated 2nd August 2013.
14. THE JUDICIAL STANDARDS AND ACCOUNTABILITY BILL, 2012.