Call for Papers – CONSILIENCE – ANNUAL CONFERENCE ORGANISED BY THE LAW AND TECHNOLOGY COMMITTEE OF THE STUDENT BAR ASSOCIATION- NATIONAL LAW SCHOOL BANGALORE
Consilience is an annual conference organised by the Law and Technology Committee of the Student Bar Association, at the National Law School of India University, Bangalore, India. It is devoted to the field of technology law and has sought to inspire academic debates and tackle contentious issues of contemporary relevance. Past editions of the conference have brought together luminaries like Mr. Montek Singh Ahluwalia (Deputy Chairman, Planning Commission), Mr. R. Ramraj (MD and CEO, Sify Technologies Ltd.,), Mr. Richard Stallman (Founder – GNU Project), Hon’ble Justice Yatindra Singh (Allahabad High Court, India), Mr. Rahul Matthan (Partner, Trilegal ) and have discussed issues relating to “Legal Aspects of Business Process Outsourcing”, “Biotechnology and the Law” and “Free and Open Source Software”.
This year, the Law and Technology Committee in association with the Centre for Internet and Society would be organizing Consilience-2010 with the topic for discussion as “Internet Intermediary Liability in India”. This year’s edition of Consilience seeks to not only bring leading academicians to debate upon the topic of contention but also looks to increase and encourage student participation.
In this regard, we invite abstracts related to the topic tracks of discussion as enumerated in the concept note. The abstracts must be roughly 500 words and should clearly identify the issue they are dealing with, and the argument that they seek to put forward and should strictly conform to the guidelines below. The abstracts must be footnoted and the conference follows a very strict policy on plagiarism and runs all submissions through plagiarism detection software. Selected abstracts will be notified on January 25th and the authors are required to submit a final paper by March 5th. Authors are required to note that the organizers reserve the right to reject the final paper even after acceptance of the abstract if it is felt that the final paper is unsuitable to be presented, being off topic, too different from the abstract, containing plagiarized material, of low quality or any other such reason. Only submissions made through our webstie will be accepted.
Pls Visit : http://www.consilience.in
Start here to submit a paper to this conference.
Siddharth Varadarajan IN THE HINDU
Behind every man like S.P.S. Rathore who abuses his authority stand the generals and footsoldiers who help and support him. We need to take them all down.
S.P.S. Rathore, the criminal former top cop of Haryana, may appear alone today but we must never forget that he was able to get away with the sexual molestation of a young child and the illegal harassment of her family for 19 years because he had hundreds of men who supported him in his effort to evade justice.
The fact that these men – fellow police officers, bureaucrats, politicians, lawyers, judges, school administrators – were willing to bend the system to accommodate a man accused of molesting a minor speaks volumes for the moral impoverishment of our establishment and country. Decent societies shun those involved in sexual offences against children. Even criminals jailed for ‘ordinary’ crimes like murder treat those serving time for molesting children as beyond the pale. But in India, men like Rathore have their uses for their masters, so the system circles its wagons and protects them.
The CBI’s appeal may lead to the enhancement of Rathore’s sentence and perhaps even the slapping of abetment to suicide charges, since his young victim killed herself to put an end to the criminal intimidation her family was being subjected to by Rathore and his men. But the systemic rot which the case has exposed will not be remedied unless sustained public pressure is put on Prime Minister Manmohan Singh and Union Home Minister P. Chidambaram, two men who have it in their power to push for simple remedies in the way the Indian law enforcement and justice delivery system works.
First, abolish the need for official, i.e. political sanction to prosecute bureaucrats, policemen and security forces personnel when they are accused of committing crimes. The original intent behind this built-in stay-out-of-jail card was to protect state functionaries from acts done in the course of discharging their duties in good faith. Somewhere along the line, this has come to mean protecting our custodians of law and order when they murder innocent civilians (eg. the infamous Panchalthan case in Kashmir where the trial of army men indicted by the CBI for murdering five villagers in 2000 still cannot take place because the Central government will not grant permission), or assault or molest women and children. No civilised, democratic society grants such impunity. It is disgusting to see former officials and bureaucrats from Haryana saying how they had wanted Rathore prosecuted but were prevented from doing so because of pressure. Such officials should either be made formally to testify in a criminal case against the politicians who so pressured them or they should themselves be hauled up for perverting the course of justice.
Second, stop talking about how making the police and army answerable to the law will somehow demoralise their morale. Does anybody care about the morale of ordinary citizens any more? Or the morale of upright police and army officers, who do not think it is right for their colleagues to be able to get away with criminal acts?
Third, bring an end to the cosy relationship between the police and politicians. Rathore was protected by four chief ministers of Haryana. He served them and they served him by ensuring his unfettered rise. It is absurd that the Indian Police is still governed by a colonial-era Act dating back to 1861. A number of commissions have made recommendations for reforming the police over the years; but no government or political party wants to give up its ability to use and misuse the police for their own benefit.
Fourth, ensure that police officers who abuse their authority and engage in mala fide prosecutions are dismissed from service and sentenced to jail for a long period of time. Mr. Chidambaram should use the considerable resources at his command to find out who were the policemen involved in filing 11 bogus cases against the teenaged brother of the young girl Rathore molested. He should then make sure criminal proceedings are initiated against all of them. The message must go out to every policeman in the country: If you abuse the law at the behest of a superior, you will suffer legal consequences.
Fifth, ensure that criminal charges against law enforcement personnel are fast-tracked as a matter of routine so that a powerful defendant is not able to use his position to delay proceedings the way Rathore did for years on end. The destruction or disappearance of material evidence in such cases must be treated as a grave offence with strict criminal liability imposed on the individual responsible for breaking the chain of custody.
Sixth, empower the National Human Rights Commission with teeth so that police departments and state governments cannot brush aside their orders as happened in the Rathore case. This would also require appointing to the NHRC women and men who have a proven record of defending human rights in their professional life, something that is done today only in the breach. The attitude of the Manmohan Singh government to this commission and others like the National Commission for Women (NCW) and National Commission for Minorities is shocking. Vacancies are not filled for months on end.
Seventh, ensure the early enactment of pending legislation broadening the ambit of sexual crimes, including sexual crimes against children. Between rape, defined as forced penetrative sex, and the vague, Victorian-era crime of ‘outraging the modesty of a woman’, the Indian Penal Code recognises no other form of sexual violence. As a result, all forms of sexual molestation and assault short of rape attract fairly lenient punishment, of the kind Rathore got. In his case, the judge did not even hand down the maximum sentence, citing concerns for the criminal’s age. Sadly, he did not take into account the age of the victim and neither does the IPC, which fails to distinguish between ‘outraging the modesty’ of an adult woman and a young child.
A draft law changing these provisions and bringing India into line with the rest of the modern world has been pending with the NCW and Law Ministry for years. Perhaps the government may now be shamed into pushing it through Parliament at the earliest.
Eighth, take steps to introduce a system of protection of witnesses and complainants. The fate that the family of Rathore’s young victim had to endure is testament to the fact that people who seek justice in India do so at their own peril.
Ninth, ensure that robust interrogation techniques like narco-analysis, which are routinely used against other alleged criminals, are also employed against police officers accused of crimes.
Tenth, the media and the higher judiciary must also turn the light inward and ask themselves whether they were also derelict in their duty. The Rathore case did not attract the kind of constant media attention it deserved, nor do other cases involving serving police officers accused of crimes against women, workers, peasants and minorities. As for the upper courts, their record is too patchy to inspire confidence. It was, after all, the high court which chose to disregard the CBI’s request for including abetment to suicide charges.
By Bibek Debroy in The Indian Express
Not too many people remember Kawas Maneckshaw Nanavati now. After all, Nanavati died, almost unnoticed in Canada in 2003. He was tried for shooting Prem Ahuja, his wife Sylvia’s lover in 1959.
There was a jury trial and the Greater Bombay Sessions Court acquitted him with a verdict of 8-1. The Sessions Judge was dissatisfied and referred the case to the High Court, which thought the presiding judge had misled the jury. The High Court sentenced Nanavati to life imprisonment and this was upheld by the Supreme Court in 1961. However, Nanavati was eventually pardoned and released. The Nanavati case was responsible for abolition of jury trials in India in 1960. It was the last trial by a jury.
The presiding judge misleading the jury wasn’t the reason for abolition of jury trials. Since the Nanavati case was extensively reported in the media, it was felt that the jury was influenced by the publicity. There is quite a bit of cross-country literature on the pros and cons of jury trials versus bench trials, with distinctions sometimes drawn between civil and criminal cases. Most common law jurisdictions (Israel is an exception) have some form of jury trial and several civil law jurisdictions too. Notice the time-line of the Nanavati case – crime committed in 1959 and eventual decision in 1961.
Today, such a time-line for adjudication is impossible. The backlog is too large and pace too slow. There are justifiable reasons for scepticism about trial by media and influence of publicity. (For Nanavati, it was mostly “Blitz”.) Witness media blitz created over Priyadarshini Mattoo, Jessica Lall and Nitish Katara. However, there is one point that doesn’t figure in discussions of pros and cons of jury trials vis-a-vis bench trials. There are several things that can be done to reduce backlog and ensure speedy trials, some of which are on Moily’s agenda of judicial reform. But one problem is absence of continuous trials. Since jury trials involve getting a bunch of people together for a finite time, it is inevitable that trials are continuous. It is no coincidence that there is correlation between scrapping of jury trials and prolonging of cases. (Japan introduced jury trials as recently as 2004.) There are ways of ensuring juries aren’t unduly influenced, with adequate safeguards. Since no one has figured out a sensible way of ensuring continuous trials, notwithstanding its mention in agendas of judicial reform, should we ask whether that 1960 decision of abolition of jury trials was a mistake?
Pratixa Bakshi in THE INDIAN EXPRESS DECEMBER 26,2009
Ruchika Girhotra was 15, a young tennis player who was hoping to go to Canada, with aspirations to train for the country. It was SPS Rathore, President, Haryana Lawn Tennis and later DGP, who advised her father that he would arrange special coaching for her, instead of her being sent to Canada for training. On August 12 1990, Ruchika was molested by Rathore in the office of the Lawn Tennis Association under the pretext of conversing with her about the special coaching. Her friend, Aradhana, found Ruchika trying to free herself from the accused.
It was Aradhana’s testimony 19 years later that was critical to the conviction and sentence in this case. Justice Sandhu sentenced the accused “with rigorous imprisonment for six months and fine of Rs. 1000 for the offence u/s 354 of IPC.” Rathore, now 68, was not given the maximum punishment in light of his age and the time taken for the trial though Justice Sandhu finding him guilty says, “a person can be competent and efficient, but…merely on the ground of meritorious service, it can not be presumed that anybody will not commit the act molestation”.
In other words, a young aspiring sportswoman was seen as “available” by the police officer who subsequently forced her to abandon her fight for her dignity, through a process of institutionalised victimisation which poisoned her everyday life. Ruchika was suspended from the tennis court, thrown out of her school and subjected to everyday threats to her security. False cases, including a case of car theft, were levied against her brother, then a minor, as a technique of criminal intimidation. Ruchika subsequently put an end to her suffering by consuming poison on December 28, 1993 and died the next day.
The case history is Kafkaesque. The unforgivable delay in this case took the victim’s life, destroyed her family, and wounded her friends. The defence not only mounted a vicious attack on the fact of friendship
between two girls, constructed a story of enmity which does not withstand even a casual scrutiny, but it also blamed the victim for “provoking” the violence she encountered. The defence argued that “Ruchika was a convent-educated girl, very rich and had influential background. She was modern and friendly with male trainees in HLTA training court. It is too unnatural and improbable that a girl with such a profile and background could entertain any apprehension from the accused.” It is unbelievable that the defence was permitted to remark on the deceased girl’s character.
The law itself remains rooted in colonial formulations about women’s “modesty” which is seen as an attribute of the female sex. Many judgments have also held that all women do not possess of modesty and therefore do not deserve the protection of law. When a police officer pinches his colleague’s bottom or when he molests a young girl in a tennis association, such individual infraction is framed as flirtation, teasing, a minor public relations embarrassment or even defamation against the police officer.
The recommendation to amend the set of colonial laws has not yet been considered by the Parliament. Nor has our language to describe what happened to Ruchika altered.
Ruchika was a victim of sexualised power, compounded by the fact that this power was abused by a police officer. Even the Supreme Court has held that each incident of sexual harassment ‘results in the violation of fundamental rights of ‘gender equality’ and the ‘right to life and liberty’. Although we have a debate on sexual harassment at the workplace, it is eerie that we do not recognise that we do not have any laws which meaningfully redress sexual harassment of women and children in public or private spaces. Ruchika’s constitutional right to life and liberty was violated with impunity. We must shift our focus from “modesty” to “rights” in the first place to begin a meaningful discussion on the ramifications of this case.
Equally, the fact that systemic stalking, intimidation and harassment of the victim, complainant and her family which leads to her suicide does not occur as a ground for abetment of suicide, in the context of custodial sexual harassment, is a commentary on how the law refuses to recognises structural violence against minors.
There are no laws which protect minors against many forms of sexual violence. There is utter apathy when it comes to norms of how child witnesses in sexual harassment and rape cases should be examined. The child witness is always a suspected of being tutored by a parent. She is subjected to the same kinds of questions you would ask an adult woman in court. Lengthy cross-examinations of children are routine with no provisions for even providing water to the witness or a chair to sit on. Let alone any moves to protect child witnesses from backlash violence.
Sixteen years later, our law and society has refused to recognise that Ruchika Girhotra’s death is political, which symbolises the institutionalised processes by which her life was made utterly abject. The Indian state has refused to mourn Ruchika Girhotra. Instead, the Indian state rewarded the then inspector-general in the Haryana police as if to compensate him for Ruchika’s “impudence” for moving the law in the first place.
In Ruchika’s struggle between victimisation and survival, time was used against the victim. It is to the credit of the victim’s friend, Aradhana, who refused to allow the state’s use of time to extinguish a lifetime of resistance. It is this solidarity and friendship that demands that we, as a society, recognise that Ruchika was forced to die.
It is this courageous woman who speaks to the judiciary today to ensure that the sexualised immunity enjoyed by policemen should meet the violence of the law. Perhaps, the political class will remember now to invite public discussion on the sexual assault bill to provide some measure of protection to minors from sexual violence?
Alas, the parliamentarians who claim to lament Ruchika are like mourners without tears, performers without prayers and speakers without meaning.
The writer is assistant professor, Centre for the Study of Law and Governance, Jawaharlal Nehru University.
Restore people’s faith in justice system
by K.N. Bhat, Sr Advocate , Supreme Court of India IN THE TRIBUNE , CHANDIGARH
Strange is the state of our laws. If a woman is molested in most parts of India the maximum punishment prescribed is two years; in Andhra Pradesh since 1991 for the same offence the punishment will be a minimum sentence of five years RI, extendable up to seven years. In Madhya Pradesh since 2004 this offence is punishable with an imprisonment up to 10 years. In Orissa after the year 1995 the offence is non-bailable —only a court and not a police officer can grant bail to an arrested accused. In the rest of India, molesting a woman is a bailable offence. That, however, was not the reason for the Chandigarh magistrate to readily grant bail to Rathore after pronouncing him guilty — in cases where sentence is short, bail is granted as a rule.
The long life of 19 years of this case had two phases — the first one started on August 15, 1990, when a written complaint was addressed to the Home Secretary of Haryana. The Chief Minister promptly ordered the Director-General of Police to investigate. The DGP on September 3 found that the allegations were true and recommended registration of the case. The successor DGP, who assumed office in March ’91, recommended departmental proceedings in addition. And then in July ’91 Mr Bhajan Lal became the Chief Minister. Rathore apparently had a gala time thereafter — Ruchika’s teen-aged brother was brazenly hounded, arrested and tortured in connection with many false theft cases. On December 28 Ruchika succumbed to the poison she consumed — may be the wolf was still hounding her. In January 1994 the Bhajan Lal government withdrew all charges against Rathore and he got promoted; may be some Presidential medals followed.
Phase II started in 1997 when, after a long wait, Ruchika’s friend Aradhana’s parents could get a copy of the August 1990 report of the DG. They moved the Punjab and Haryana High Court who directed the CBI to investigate the case. After the Supreme Court upheld that order in 1999 the CBI stepped in and filed a charge sheet in January 2000. That charge sheet did accuse Rathore of abetting suicide also. Rathore succeeded in getting that charge deleted by the High Court and also in delaying the trial till 2007. In the meanwhile Rathore retired in 2002.
Abetting suicide is a difficult charge to prove, but the CBI seems to have not noticed Section 511 of the Penal Code which makes an attempt to commit an offence also an offence with serious consequences of harsh punishment. Was not Rathore attempting to rape a minor girl? Surely, he was not probing her person to assess her fitness to play tennis. If only Aradhana was late by another minute or two in returning, he would have had his kill. The inference that Rathore is guilty of attempting to commit rape flows from the established facts. The punishment could be “one half of the imprisonment for life”
The case calls for effective remedies — immediate as well as ultimate. As an immediate remedy, the High Court in Chandigarh may be moved with a prayer for ordering enhancement of the sentence and retrial in exercise of its power of revision or even under the writ jurisdiction – also on the additional charge of attempting to commit rape. Separate proceedings may be initiated for starting false prosecution, including wrongful detention of Ruchika’s brother. And the possibility of proceeding against his pension benefits should be examined simultaneously. The public will surely help to set up a fund to meet the expenses.
Cases like Ruchika, BMW or Jessica Lall repeatedly remind us about the inadequacies of our criminal law administration. But the reaction is like the feeling of dejection one gets at a crematorium — it lasts until one comes out.
The glaring shortcoming of our system is that at the end of the trial, truth is a certain casualty — the trial does not, nor is it intended to, bring out the truth. It is concerned only with the evidence to prove that the accused is found guilty beyond reasonable doubt. In case of doubt, the accused gets acquitted even where the general public lives with a different opinion.
In an ideal criminal justice delivery system, the investigation must lead to firmly establishing the truth and consequently punish the guilty. In our system, the narrow purpose of investigation by the police is to identify the culprit and ensure his conviction. The Justice Malimath Committee, appointed by the Ministry of Home Affairs, Government of India, on reforms of the criminal justice system, submitted its report in March 2003. Among the suggestions made by the committee was to emphasise that “quest for truth shall be the foundation of the criminal justice system”, and, therefore, “it shall be the duty of every functionary of the criminal justice system and everyone associated with it in the administration of justice, to actively pursue the quest for truth.” This may be the approach for a long term solution to the ills of our criminal justice system.
The idea is borrowed from the inquisitorial system prevailing in the continent, in contrast to the adversarial system of the common law countries, including India. Under the European system, broadly-speaking, certain classes of cases are entrusted to an investigating judge and the police personnel attached to the judiciary work under him. The judge, in the course of investigation, assumes a pro-active but impartial role and collects evidence for and against the prosecution. He builds up a dossier of all the material collected, which is aimed at finding out how exactly the crime had taken place and who committed it. The matter thereafter goes for trial before another judge. The accused has an opportunity of making submissions, but questioning of witnesses is done generally by the judge. Strict rules of evidence are not applicable in the continental system — even here — say evidence can be looked into. The “inner conscience” of the judge guides the course.
One thing is clear: no country has a perfect system in place. The Malimath Committee suggested some amendments to the Criminal Procedure Code within the disciplines of the guaranteed rights under the Constitution against testimonial compulsion. Indian criminal law practitioners opposed any change in the law to dilute the burden of proof being entirely on the prosecution. In today’s practice, all that is needed of a defence lawyer is to create a doubt about the prosecution story, which is not difficult if the police cooperates.
If the Ruchika tragedy were to take place in Europe, the entire course of the case, from the inception leading to the suicide of the victim and further harassment to the members of her family, would have all formed part of the investigation and trial unhampered by technicalities and permitting just one appeal on limited grounds.
Ruchika case has at once exposed the failures of our police, the executive, the press and the judiciary. The police failed to register a right case and prosecuted false cases; the executive protected and rewarded criminals; the media, which excels in “breaking news”, was mum throughout the decade; and the judiciary dilly dallied and awarded just a token sentence where the maximum permissible did not match the gravity of the guilt. Only Aradhana and her parents stand out.
In our country, the Rathores, the Nandas and the Sharmas repeatedly assert their “faith in the judiciary” — they have good reasons for that. It is high time to make efforts to win the faith of our people in our justice system.n
The writer is Senior Advocate, Supreme Court of India.
Vibha Sharma and R.Sedhuraman , Tribune News Service
New Delhi, December 25
Describing as “unpardonable” the long period of 19 years taken for the trial in the Ruchika Girhotra molestation case, Law Minister M Veerappa Moily today said there was need for revisiting the case which continued to evoke strong reactions from politicians, including former Haryana Chief Minister OP Chautala, and bureaucrats.
Acknowledging that the case had not been handled well, Moily told reporters that whoever was responsible for this should be dealt with appropriately. “A case of this nature needs to be revisited” by following the due process of law and without allowing any interference by vested interests.
The Law Minister said he had asked Attorney General of India GE Vahanvati to discuss the case with Central Bureau of Investigation (CBI) Director Ashwini Kumar and come out with suggestions on the future course of action.
Ruchika was 14 years old when she was molested on August 12, 1990 by the then Inspector General of Police SPS Rathore who subsequently became Haryana police chief. The teenager committed suicide three years later. The CBI court which tried the case sentenced him for six months and slapped a fine of Rs 1,000 on the charges of molestation, but acquitted him of the charge of abetment to suicide. The court also granted him bail to enable him appeal against the conviction.
Ruchika’s father Subhash Girhotra had blamed Chautala for protecting Rathore by ensuring that no action was taken against him.
Rejecting this charge, INLD chief Chautala said Bansi Lal was Chief Minister when Rathore was promoted. In fact, his government was instrumental in chargesheeting Rathore, he said. However, according to top Haryana officers, Rathore got all his promotions on time between 1990 and 2002 and all those who were chief ministers during this period should share the blame.
Congress spokesman Manish Tewari came down heavily on Chautala for defending himself, stating that the former CM “should be ashamed of himself” for his “insensitive and callous” attitude towards the issue on which the entire nation was agitated.
It was “extremely unfortunate” that instead of apologising to Ruchika’s family for his inaction, advertently or inadvertently, Chautala had attempted to politicise the tragedy which had many implications and highlighted the deficiencies in the system, Tewari said.
“It demonstrates the insensitivity inherent in his politics and deserves to be condemned by all right thinking people,” the Congress leader said.
Asked whether Rathore should be stripped off his police medals and denied pension in view of his conviction, Tewari said the cop should immediately face all the logical consequences.
PTI adds: With the Ruchika molestation case causing an uproar, Moily today said the government has decided to “fast-track” cases relating to women, including those involving rape, molestation and dowry. “At the National Consultation on Judicial Reforms held recently, the government and the judiciary have decided to prioritise and classify cases related to women, children and the disabled…classification is an important component of the programme,” Moily said here. He said classification and prioritisation would ensure that such cases are “fast-tracked” in courts. He said a “blueprint” on legal reforms approved by the Union Cabinet has mentioned classification of cases for early disposal.
“Otherwise also, cases pending for 15 years or more will be reduced to 3 years and that will be achievable from here within 3 years. All cases pending in courts after January 1, 2010 will be treated as arrears,” the Minister said adding, a policy could be announced in a fortnight.
To a question on the delay in delivery of justice in the Ruchika molestation case, Moily termed it as “atrocious”. “Ruchika’s case is atrocious,” he said.
Noting that the Ruchika case was “telling” upon and reflecting upon the judiciary itself, Moily said: “That is why we are interested in it”. Asked whether there was a possibility of reopening the case, Moily said the matter will be looked into and he had a discussion with the Solicitor General of India and the CBI also.
NEW DELHI: Of late judiciary is facing allegations that selection of judges is not up to the mark. Favouritism is gaining precedence over merit, say some of the advocates. It is only in India that judges select judges.It doesn’t happen anywhere else in the world, they point out.Prior to 1993, it was the Executive that used to select judges for the higher judiciary in consultation with the Chief Justice of India.
However, finding that Executive is imposing its favourite men on it, the Supreme Court, in a judgment in 1993 held that judges would be selected by the CJI assisted by two judges of the apex court.
Express spoke to some of the eminent advocates on the issue to elicit their views. Senior advocate and former solicitor-general TR Andhyarujina said: “Though the judgment of the Supreme Court is totally wrong and a prime example of apex court overreaching, we cannot give the government full power today to appoint judges.
We have to try an independent judicial appointments commission.” The Constitution does not contain a provision to select judges by a collegium of judges. It confers the power on the President, in other words, the Government of India, and it is to be made in consultation with the CJI and other judges of the Supreme Court and the High Courts, the senior advocate said.
This method of collegium was created as a result of two judgments.In 1993 (Supreme Court Advocate-on-Record Association case) the power was vested in the CJI. It was held that the primacy lay in the CJI, assisted by two judges of the apex court.
And later, in a presidential reference to the court in 1998, to secure the independence of the judiciary, the Supreme Court appropriated the power to appoint judges.
By Justice DV Shylendra Kumar
Judicial accountability is a phrase which sounds incongruous and can convey conflicting messages. It has assumed importance in the wake of the improper, irregular, incorrect manner of functioning of judicial officers. In the true sense of the phrase ‘judicial accountability,’ an order passed on the judicial side can be made accountable only before a higher appellate forum.
Judges of the subordinate judiciary — which is judiciary up to the level of district courts in a state — are all made accountable in respect of their acts as they are amenable to the disciplinary control enforced and supervised by the respective high courts of the states.
Insofar as the judges of the superior courts are concerned, the only way of disciplining an errant judge of a High Court or the Supreme Court is by way of impeachment by Parliament as provided in Article 124 of the Constitution of India, particularly, sub-articles (4) and (5) of Article 124, which reads as under:
124.Establishment and constitution of Supreme Court.—
(4) A Judge of the Supreme Court shall not be removed from his office except by an order of the President passed after an address by each House of Parliament supported by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present and voting has been presented to the President in the same session for such removal on the ground of proved misbehaviour or incapacity.(
5) Parliament may by law regulate the procedure for the presentation of an address and for the investigation and proof of the misbehaviour or incapacity of a Judge under clause (4).
In respect of the Judges of the High Courts, the provisions of Article 217 of the Constitution of India, particularly, as indicated in clause (b) of sub-article (1) of Article 217, is the procedure envisaged for the removal of a judge of a High Court.
217. Appointment and conditions of the office of a Judge of a High Court—
(1) Every Judge of a High Court … shall hold office, in the case of an additional or acting Judge, as provided in Article 224, and in any other case, until he attains the age of sixty-two years:Provided that —
(a) a Judge may, by writing under his hand addressed to the President, resign his office;
(b) a Judge may be removed from his office by the President in the manner provided in clause (4) of article 124 for the removal of a Judge of the Supreme Court; or
(c) the office of a Judge shall be vacated by his being appointed by the President to be a judge of the Supreme Court or by his being transferred by the President to any other High Court within the territory of India.For the present, there is no other mechanism or procedure to discipline an errant judge of a superior court and if the past experience is any indication, the impeachment procedure does not work in reality and in practice.
More so in the present political system in our country where motions and debates in parliament are based only on political considerations, impeachment mechanism may never be a practical methodology of disciplining an errant judge of a superior court, unless there is consensus amongst the political parties. That virtually leaves the judges of the superior courts immune from any accountability and that is why the phrase ‘judicial accountability’ assumes importance and significance.
Every judge of this country is a public servant and every public servant is, without any second opinion, accountable to the people of this country. The conduct of a judge outside his office should also be one which can pass muster in the eyes of the people. In the scheme of our Constitution, the Supreme Court cannot have any say in the matter of the functioning of the high courts (as it is not a subordinate court to the Supreme Court) and the only authority of the Supreme Court vis-a-vis high courts is on the appellate side, as provided under the laws and under the Constitution.The concept that the Chief Justice of India, being the head of judiciary in the country, and therefore, can exercise his moral authority to ensure that erring judges fall in place and behave themselves, is a misnomer and misconception. The mere moral authority of the Chief Justice of India, is of no value or significance, unless it can have some binding effect, which is not so provided under the Constitution.
The Chief Justice of India is more like a serpent without fangs, who can only hiss, but not bite, which will be an open secret in no time and the serpent will not be feared by any one, however menacing it may look, however loud it may hiss! An errant judge is a person who has breached the moral code of conduct, is a brazen person on whom no moral authority binds, nor does he respect moral authority. With the constitutional mechanism and the inside mechanism failing to usher in any measure of judicial accountability, the only alternative is by taking the issue to the people who are the masters in our polity, and alert judicious public opinion. In moulding such public opinion, legal fraternity has the most important role to play.
The Bar is said to be the watchdog of the Bench. Conduct of the judges while functioning in the courts is watched and judged by lawyers day in and day out. It is lawyers who educate a judge, who provide him inputs for satisfactory judgments, who can also understand and point out follies of a Judge.
It is for the lawyers to ensure that the judges behave and conduct themselves in a proper manner. That alone can ensure a degree of judicial accountability. Our courts are open courts and the functioning of judges is in the glare of members of the public. That is the greatest safety and assurance of an upright judiciary.
Public opinion should be motivated and guided in this direction and our lawyers have a definite and great role to play in this regard. On this occasion, I would like to quote from the book ‘Judges’ written by Sir David Pannick, Barrister; Fellow of All Souls College, Oxford, and a very eminent Queen’s counsel, a small part of the conclusion in chapter — 8 of the book. “The judiciary is not the ‘least dangerous branch’ of government … Judges are not mere ‘lions under the throne’ … They send people to prison and decide the scope and application of all manner of rights and duties with important consequences for individuals and for society. Because the judiciary has such a central role in the government of society, we should (in the words of Justice Oliver Wendell Holmes) ‘wash… with cynical acid’ … this aspect of public life. Unless and until we treat judges as fallible human beings whose official conduct is subject to the same critical analysis as that of other organs of government, judges will remain members of a priesthood who have great powers over the rest of the community, but who are otherwise isolated from them and misunderstood by them, to their mutual disadvantage.
I am sure this is equally so or more so in respect of our judges and our society, and this message will definitely reach the people of our country through the members of the Bar and the judiciary in our system is retained, respected and ensured to function for the purpose for which it is meant in our Constitution.
(Edited and condensed form of article written by Karnataka High Court judge D V Shylendra Kumar on his website)