Putting back credibility in judiciary

The unprecedented revolt by four SC judges underscores the need for taking forward the Judicial Standards And Accountability Bill, 2010
Putting back credibility in judiciary

Rifts in any public institution must never be regarded as an internal matter. It’s best if they come out in the open. The Supreme Court itself, in dozens of cases has advocated transparency in all matters of public importance. Secrecy only encourages nepotism and corruption.Viewed in this backdrop, let’s examine the flashpoints which triggered the unprecedented press conference held by four Supreme Court judges: Justices J Chelameswar, Ranjan Gogoi, Madan B Lokur and Kurian Joseph. I am glad that they consider the Supreme Court to be the people’s court. After all, the Court does not exist for itself but for the people—its consumers.

The first flashpoint was the PIL seeking an enquiry into the death of the Special CBI Judge B H Loya. His death is shrouded in mystery and his family smells foul play. Moreover, the fact that Judge Loya was dealing with one of the most controversial cases: the murder of Sohrabuddin Sheikh. His comments in the court were harsh. According to reports, he was advised by the Chief Justice of the High Court to be mellow. Worse, he was allegedly asked to take a bribe. This case obviously has the backdrop which would rile any judge. If this is true, no judge, lawyer or victim would be safe. So it was natural for the judges to keep abreast of the developments of this PIL to ensure that the truth is unearthed.

The Loya episode perhaps proved to be the trigger because of their previous experience about the manner in which the MCI bribery case was dealt.   This was way more sensational as there were needles of suspicions of possible misfeasance and malfeasance by the Chief Justice of India. Perhaps because of this, the matter was mentioned in Court No. 2, in front of Justice Chelameswar who may have believed that the matter was too sensitive to be swept under the carpet. Justice Chelameswar ordered the matter to be listed before a Bench of five senior-most judges. The CJI struck back through a written note asking him not to proceed. That gave rise to the question whether the Common Law principle of master of roster applies to India even though there is neither any law nor any reference to the same in the Constitution. Moreover, the principle of natural justice is that no one can be a judge in its own cause.

If so, the CJI in this case ought not to have dealt with the matter even in administrative capacity, forget about hearing it on the judicial side. Then there is the doctrine of necessity; if there were to be any ground to “suspect” the involvement of the CJI in any manner amounting to misfeasance and malfeasance he should recuse himself both from administrative functions and judicial authority in relation to the said case. The doctrine of necessity would require the next senior judge to assume the role of master of roster in that matter.

The fact that it did not unfold that way, is a matter of great regret. That the petitioner was asked to point out if the name of the CJI was mentioned in the FIR, is a matter of further regret. In light of the dicta of Veeraswamy’s case the name of any judge could not appear in the FIR without permission of the Chief Justice concerned.

In addition to this, the logjam created over the Memorandum of Procedure had resulted in a situation where High Courts have been functioning at 50 per cent to 60 per cent of the sanctioned strength. The appointment of judges was also being inordinately delayed.

The present controversy once again underlines the urgent need for an institutional mechanism to deal with complaints of common men. The procedure for dealing with such complaints must be laid down threadbare and should be as transparent as possible. This will reinforce their faith in the institution.
The issue also underscores the urgent need for taking forward the Judicial Standards And Accountability Bill, 2010. The Bill deals with the vexed issue of institutional integrity and prescribes a transparent mechanism. The Bill provides for judicial standards and lays down credible procedure for investigation of complaints. It seeks to check judicial misconduct.

The Bill says that the judges must not contest elections, must not have close association with members of the Bar, must  not permit members of the family who are lawyers to live with them, must not adjudicate matters concerning their family members and must not enter into any debate about political matters except in their individual capacity at an academic forum. It also prescribes that the judges must not give interviews to the media in connection with the judgments given by them. It bars judges from accepting gifts or hospitality and from adjudicating matters of company or society in which they have shares or interest. The judges are also sought to be barred in the said judicial conduct to engage in trade or business or obtaining any financial benefit or privileges. They are also sought to be barred from holding memberships in organisations that practice discrimination on the basis of race, caste or sex.
The Bill provides for compulsory declaration of assets by all judges every year, as well as the assets of their spouses, relatives and children.

Institutional mechanism by way of a national judicial oversight committee is sought to be prescribed comprising the CJI, a Supreme Court judge, Attorney General, and an eminent person nominated by the President. A detailed mechanism for dealing with complaints, and time-bound schedule was prescribed in the Bill. An enquiry procedure was laid down and the power was vested in the Oversight Committee to stop judicial work to a concerned judge. It’s high time the Parliament considers this Bill and takes urgent steps to build consensus for the same.

K T S Tulsi
Senior Advocate and Member of Rajya Sabha
Email: tulsi.kts@gmail.com

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