Judicial Accountability Bill introduced in Lok Sabha

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J. Venkatesan in THE HINDU

NEW DELHI: The Judicial Standards and Accountability Bill providing for a mechanism to deal with complaints against judges of High Courts and the Supreme Court was tabled in the Lok Sabha on Wednesday by Law Minister Veerappa Moily even as Opposition MPs were demanding a JPC probe into the 2G spectrum scam.

The Bill sets judicial standards and makes judges accountable for their lapses and mandates judges of the High Courts and the Supreme Court to declare their assets and liabilities, including those of their spouses and dependents and to file an annual return in this regard. This will be displayed on the website of the Supreme Court and the High Courts concerned.

The Bill to replace the Judges Inquiry Act retains its basic features, contemplates setting up of a national oversight committee, to be headed by a former Chief Justice of India, with which the public can lodge complaints against erring judges, including the Chief Justice of India and the Chief Justices of the High Courts.

At present, there is no legal mechanism for dealing with complaints against judges, who are governed by ‘Restatement of Values of Judicial Life,’ adopted by the judiciary as a code of conduct without any statutory sanction.

The five-member committee to be appointed by the President will have a serving judge of the Supreme Court and a serving High Court judge, both nominated by the Chief Justice of India; the Attorney-General; and an eminent person nominated by the President.

Scrutiny panels

On receiving a complaint, the committee will forward it to a system of scrutiny panels. In the case of a complaint against a Supreme Court judge, the scrutiny panel will consist of a former Chief Justice of India and two sitting Supreme Court judges, and in the case of a complaint against a High Court judge, the panel will have a former Chief Justice of the High Court and two of its sitting judges. The members of the Supreme Court panel will be nominated by the Chief Justice of India, and that of the High Court panels by the Chief Justice of the High Court concerned.

The scrutiny panels will have the powers of a civil court. For instance, they can call for witnesses and evidence. They will be required to give their report within three months to the oversight committee. In the case of a complaint against a Chief Justice, the oversight committee itself will conduct the scrutiny.

On receiving the report from the scrutiny panels, the oversight committee will set up a committee to further investigate the case. Like the scrutiny panels, the investigation committee will have the powers of a civil court; it will have the power to frame definite charges.

If the charges are not proved, the investigation committee can dismiss the case. Otherwise, it will give a report to the oversight committee, which can issue an advisory or warning or recommend minor punishment if the charges are not too serious. If the charges are serious, the committee can request the judge concerned to resign. If the judge does not do so, the oversight committee will forward the case to the President with an advisory for his removal.

The Bill mandates that judges should not have close association with individual members of the Bar and not allow any member of their immediate family to appear before them in courts. Judges should not contest any election to any office of club, society or other association, except those associated with the law or any court. Further, they should not have any bias in judicial work or judgments on the basis of religion, race, caste, sex or place of birth.



SC to decide if public interest can trump right to privacy


NEW DELHI: The distinction between public interest and right to privacy has never been thinner — and more important. India’s top industrialist Tata Group Chairman Ratan Tata’s petition to Supreme Court, asking for a bar on leaks of any more tapes of his phone conversation with lobbyist Niira Radia, has legal luminaries debating where the fine line between public interest and privacy really lies.

The case is scheduled for hearing on Thursday.

In his petition filed on Monday, which has so far not been made available to the press, Tata is reported to have claimed that his conversations with Radia were personal in nature and while government has the right to tap phone conversations in public interest, such conversations should not have been leaked but be used strictly for the purposes of investigation.

Tata has asked that the government fix the responsibility for the leaks and take action against officials who were responsible. The government has already ordered an inquiry into the leaks.

Supreme Court lawyers that ET spoke to say that the outcome of the case hinges on whether public interest can trump over right to privacy.

“This is not about Mr Tata’s right to privacy, but about Ms Radia’s activities,” says lawyer Dushyant Dave

“There is a fine balance between the right to privacy and the public’s right to know. But if the information is of vital public interest, that trumps the right to privacy,” he adds.

Advocate Mahesh Jethmalani has a similar view. “If the phone tap is legitimate and authorised, then the right to privacy must succumb before the overwhelming public interest,” he says.

Lawyer and legal scholar Rajeev Dhavan points out that there are two issues with the right to privacy. “First, if something is already in the public domain there is no question of restraining its publication. Second, while someone may claim privacy or the need to safeguard commercial interests, this is overridden if the information is in the public interest.”

Then there is the issue of who’s responsible for the leak. According to Jethmalani if a public official has leaked the documents, then it may be a case of breach of trust, since he or she could be in violation of their professional responsibilities.

“However a journalist who gets the information and publishes it can claim the public interest as a defence,” he adds.

Jurist, Member of Parliament and national spokesperson of the Congress, Abhishek Manu Singhvi says: “Rights under the Indian Constitution are not absolute. Privacy, though traceable to the right to life under Article 21, is always liable to be hedged in by reasonable restrictions – for example in the interests of national security, or the prevention or solution of crimes.”

So how does one decide where privacy ends and public interest begins? “It is crucial that citizens, regulators, the police and courts follow a balancing approach based on the nitty gritty facts of a particular case – generalisations without reference to facts are bound to be inaccurate,” says Singhvi.

The taps on Radia’s phone, which were authorised by the Home Secretary and which took place over the course of a year starting late 2008, were done as part of an investigation by the Income-Tax Department.

Reportedly over 5,000 conversations by Radia were recorded. Of these, about a hundred or so conversations, with journalists, politicians and others, including Ratan Tata , have appeared in the media.


Sweeping bill to rein in errant judges – Centre proposes complaints panels, addresses ‘uncle judge’ problem

New Delhi, Dec. 1: The government today repealed the Judges Inquiry Act, 1968, blamed for much of the ills plaguing the judiciary, and introduced a sweeping new bill in the Lok Sabha that provides for a complaints mechanism and punishment to deal with errant judges.

The bill proposes complaints scrutiny panels in the high courts and the Supreme Court. The panels will be headed by a former chief justice and include two judges nominated by the chief justice of each court. They will enjoy all powers of a civil court.

Complaints will be scrutinised at the preliminary stage by the panels, which can either reject them or forward them to a National Judicial Oversight Committee for an inquiry.

The five-member oversight committee — it will be made up of a retired Chief Justice of India, a Supreme Court judge, a high court chief justice, the attorney-general and an eminent member nominated by the President — will investigate the complaints and, if it is proved, take action.

Errant judges can be reprimanded or have their work taken away. In the worst-case scenario, the committee could also advise the government to initiate a case against the judge or initiate impeachment proceedings. At present, the only punishment prescribed for a judge is impeachment.

A false complaint could, however, draw a jail term of up to five years and a fine of up to Rs 5 lakh.

All complaints will go first to the committee, which will send them to the scrutiny panel for a preliminary investigation within three months. It will deal with any complaints against the Chief Justice of India on its own.

If the scrutiny panel feels a complaint should be looked into, the complaint will go to an investigation panel of the oversight committee. The inquiry will be in-camera —breach of confidentiality will draw a jail term of up to one month and a fine of up to Rs 500 — and if necessary, ex-parte, without the judge concerned.

The probe has to be completed within six months.

The proposed new law, deferring to public clamour for more accountability and transparency in the judiciary, also has a long list of dos and don’ts for judges of the superior judiciary.

For instance, judges will have to file their tax return statements within three months of taking office and every year thereafter by March 31. The statements will also have to list the assets and liabilities of spouses and dependent children. The Chief Justice of India will file his return statement with the President.

Judges who can’t function at their optimum because of ailments but won’t come clean will also have less room for manoeuvre. They will be subject to medical examination by a board, if accused of not being able to perform their duties, and the report sent to Parliament to do the needful.

Twitter and social networking sites are out for judges, if the sub-text of the bill is examined. They can only speak through their judgments or at judicial fora or academic events. Judges will have to hold their silence on political issues, pending cases and their own judgments.

The bill also seeks to address the “uncle judge” phenomena, barring immediate family members or close relatives from practising in a judge’s court. These include the judge’s spouse, brothers and sisters of the judge or his spouse, brothers and sisters of either parent of the judge, any lineal ascendant or descendant of either the judge or his spouse.

The bill, titled the Judicial Standards and Accountability Bill, 2010, is the UPA government’s second attempt at ensuring greater judicial accountability. The first attempt fell through amid an acrimonious debate over why the Chief Justice of India should be exempt from filing tax returns.

The new bill also expands the meaning of misbehaviour — if proved, a ground for impeachment of a judge — to include conduct which brings judiciary to disrepute, abuse of office, corruption, offence involving moral turpitude, failure to declare assets and liabilities or giving wrong information about it.


‘I feel let down’


Santosh Hegde: “I will continue the investigation.”

JUSTICE N. Santosh Hegde, a former Supreme Court judge, was appointed the Lokayukta (ombudsman) for Karnataka in 2006. In a report presented to the State’s Bharatiya Janata Party (BJP) government in 2008, he exposed major irregularities in iron ore mining in Bellary district. Hegde feels if the Lokayukta institution is “given some extra powers like prosecuting without sanction through very special courts, then it can deal with cases of corruption in six months’ time”. Excerpts from the interview he gave Frontline:

Has corruption increased?

Certainly. It has increased very much. Not only the number of corrupt people but also in the quantum demanded has gone up.

What do you attribute this rise in corruption to?

I feel it is the greed of the people who are involved in these practices. Today, hundreds of crores of rupees has no value. Take, for example, the siphoning off of money in the conduct of the Commonwealth Games. It is about Rs.70,000 crore. Take the 2G spectrum scam, the figure cited is Rs.1,76,000 crore. The amount involved in the Bofors scam was only Rs.63 crore. When we compare these figures and look at the few years in which corruption has grown, I feel not only the opportunity but also the demand for corruption has risen. Obviously, the people who bribe also have the capacity to give that much money. Consequently, they will have to suck it out of somebody. And ultimately, the [adverse] effect is on the common man.

What is the relevance of the Lokayukta in such a situation?

Maybe without the Lokayukta the quantum [of corruption] might have been more because it would have been unhindered. Anti-corruption bodies have been there for several decades but they have not been a deterrent. If the Lokayukta is given some extra powers, like the power to prosecute without sanction through very special courts (I’m placing an emphasis on ‘very’ because the special courts that we have now take seven to eight years to deal with cases), then it can deal with cases of corruption in six months’ time. The rate of corruption will come down immediately by about 35-40 per cent.

Have you sought such prosecuting powers?

I have not made any demand because if such powers are given, it should be through an all-India enactment. Changes should be made to procedural law.

After you withdrew your resignation earlier this year, some of your powers were enhanced.

Half of one. I had asked for many.

What were your demands?

I wanted power suo motu to inquire, without any complaint, against higher officers and politicians. They [the Karnataka government] gave me the power only to act against the higher officers but not against politicians. Some of my other demands, such as doing away with sanctions, were also not met.

Then why did you withdraw your resignation?

I was promised that my powers would be extended. The Chief Minister, in the presence of BJP president Nitin Gadkari and Law Minister Suresh Kumar, promised to meet my demands.

Do you feel cheated in some way?

I feel let down. I will not use the word cheated. Some people asked me why I didn’t resign again. I said it would look juvenile and people would lose faith in the kind of work I do.

When you resigned, there was a lot of public support for you. You are perceived to be the people’s guardian. What do you have to say about this role? Are you living up to people’s expectations?

I think I am going by the number of invitations I get to address students in schools and colleges and employees of information technology firms. I have addressed students of 187 schools and colleges on building a value-based society and on the true meaning of satisfaction and contentment. I receive invitations from almost all the Central government institutions during their annual Vigilance Week.

So, although your powers are curtailed your role is recognised by society.

Yes, I think I agree with that statement even if it sounds like self-praise. There is also the poorer class which admires my work and that is not because of our anti-corruption work. The object of this institution is to ensure good governance. Wherever people face bad governance or are denied justice, they come to us.

Moving on to a sore point, you were hurt by the actions of the government with regard to the illegal mining issue. Even after the publication of your report no action was taken against the illegal miners who operate freely within the government. In a way, they have openly challenged you. How do you feel about it?

It does not make me feel happy but I will not be cowed down. I must continue my fight. If I cannot reach them [the illegal mining barons], let me at least help those who are in trouble because of other issues. However, I am quite confident that we will reach them. I have got an inquiry going on. The last part of the report will be completed much before my retirement, and I’m sure we will be able to catch some big fish.

What are the salient points of the affidavit filed by the Janata Dal (Secular) with the Lokayukta on November 18?

It says the Chief Minister [B.S. Yeddyurappa] does not have the authority to denotify the lands and that he has not followed the rules. It also says the denotification was not done in good faith but with a corrupt intention, to help his kith and kin. That is their main concern. I have read the complaint and we have taken cognisance of the complaint. The judicial officer scrutinised the complaint on November 20 and I signed [approved] it today [November 23].

Now that the Chief Minister has ordered a judicial probe, can the Lokayukta still continue the investigation?

According to me, yes, because any pending matter, if it has to be transferred from one investigative agency to another under the Lokayukta Act, will need the prior concurrence of the Lokayukta.

And this has not been taken?

No, I was not taken into confidence. No one discussed this issue with me. I came to know through the media.

So you will continue with your investigation.

Yes, my investigation is going on – the legal aspect of it. Prima facie I don’t think they [the Chief Minister’s family] could have done that. But I will continue the investigation.

What is the status of the investigation into the alleged involvement of Minister Katta Subramanya Naidu in a land scam?

That case is almost ready and they [the accused] will be charge-sheeted in a week or 10 days. The charge sheet was ready for filing a few days ago but we discovered some relevant evidence connected with the investigation. We will file a comprehensive charge sheet as far as this part is concerned.

So there is clear evidence to demonstrate his culpability?

As an investigative agency, my police are clear that there was wrongdoing. Not only rules under the Prevention of Corruption Act were flouted but also offences under the Indian Penal Code, such as forgery, threat and bodily harm, were committed.

At this stage can you comment on the allegations against the Chief Minister?

No, no. I have not seen the orders of the denotification. These need to be studied in detail before I can comment.

Do you think the Central government is doing enough to check corruption?

No, I do not think so. We have had a Prevention of Corruption Act since 1947. A special law is enacted only when a particular crime cannot be handled by a regular law. Obviously, corruption was recognised as a crime serious enough to merit a special law. But what happened in December 2008 when the government tried to denude this law of some of its important sections that were helpful to the investigating agencies? Corruption has become an all-India phenomenon and is all-pervasive. I am reminded of a judgment of the Allahabad High Court by Justice A.N. Mulla, who said, “In a basket full of stinking fish, I can’t pick one and say this one stinks when the whole lot stinks.”


Missing measures

United Nations Convention against Corruption, 2003

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EVEN as members of the investigating teams looking into the corruption charges against Ministers in the B.S. Yeddyurappa Cabinet bemoan the lack of adequate laws to trap, convict and punish wrong-doers, Union Law Minister M. Veerappa Moily is of the view that the public is not doing enough to force the governments of the day to strengthen the laws meant to deal with corrupt bureaucrats and elected representatives. He feels that there is a “total tolerance of corruption” and that the “corrupt are being glorified”.

Moily, who headed the Second Administrative Reforms Commission and produced a report recommending sweeping changes in the political, judicial, administrative and electoral spheres, told Frontline that the Union government should do more. “But where is the public pressure to implement stricter laws against corruption? Especially NGOs [non-governmental organisations] and the media should push the government to act. Today the media and the NGOs are focussed only on temporary gains. They are happy going after small fry and sensationalising issues. The focus should be on evolving, reforming and improving the system of governance. Elected representatives should not be allowed to interfere in the posting of officials. Today pliable officials, especially those belonging to the same caste/community as the elected representative, are sought to be posted in his constituency or in key posts. Cronyism, casteism and nepotism lead to rampant corruption.”

Officers involved in the investigation of corruption charges against government officers and politicians are of the opinion that laws are diluted and inadequate and the government is not prepared to strengthen them. Citing the Prevention of Corruption Act (PCA), they said that the clause stipulating prior sanction from the government for prosecuting higher officials was a major hurdle.

Senior police officers pointed out that since the prosecuting agencies were not independent, investigations by them were bound to be unreliable. Another area that needs to be looked into is the Benami Transactions (Prohibition) Act, 1988. The police officers regretted that although they were aware that thousands of properties were held in benami names, they were unable to act.

With the Corrupt Public Servants (Forfeiture of Property) Bill not yet legislated, offenders are now tried under the archaic Criminal Law (Amendment) Ordinance, 1944. The officers said the ordinance was not powerful as properties of such offenders had to be first attached and then forfeited by the courts of law.

Again, while the Union Cabinet has approved the Whistleblowers Protection Act (where the onus is on the investigating officer to protect the identity of the whistleblower), the State governments have not done enough to protect him/her.

The appointment of the Lokayukta (ombudsman), which was recommended by the Second Administrative Reforms Commission, is not mandatory in all States. “The State Vigilance Commission is still part of the government and is headed by a government servant. Where is the independence? The United Nations Convention against Corruption clearly calls for independent bodies,” one officer pointed out.

According to R.V. Deshpande, who until recently was the president of the Karnataka Pradesh Congress Committee, both the Lokayukta Bill and the Lokpal Bill have to be strengthened and people’s representatives should be brought under their ambit. He said: “At present elected representatives are only required to file an affidavit about their assets. The anti-defection law should be amended withdrawing the Assembly Speaker’s powers to disqualify members. This power should be vested with the High Courts with the stipulation that a decision is handed out within two-three months. A defector should also be barred from contesting elections for at least six years. This will curtail corruption in politics.”

Ravi Sharma

Promise to women

Sexual Harassment (The Office)

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ON November 4, the Union Cabinet gave the go-ahead for the enactment of a law on protection of women from sexual harassment at the workplace. Titled Protection of Women against Sexual Harassment at Workplace Bill, 2010, the draft law is basically a new avatar of the ones prepared in 2004. This development has been pending for long considering the fact that the Supreme Court laid down as early as 1997 certain guidelines to prevent the sexual harassment of women at their workplaces, in its landmark judgment delivered in Vishaka vs the State of Rajasthan and others.

Vishaka, a non-governmental organisation working for gender equality, had filed a writ petition seeking the upholding of the fundamental rights of working women under Article 21 of the Constitution. The immediate reason for the petition was the gang rape of a saathin (a social worker involved in women’s development programmes) of Rajasthan in 1992.

The assault was an act of revenge as the saathin had intervened to prevent a child marriage. The accused were acquitted by the trial court. However, following a hue and cry raised by women’s organisations, the High Court stayed the acquittal.

While some government departments, Ministries, universities and even a small section of the media set up complaints committees as stipulated by the apex court, the private and unorganised sectors did not make much headway in this regard.

Although the Cabinet has cleared the decks for the presentation of the Bill in the ongoing winter session of Parliament, it is quite possible that the introduction of the Bill may be delayed by the din created by the 2G spectrum scam. Women’s organisations feel that the delay may help as the time lag can be used to address certain defects in the Bill. One redeeming feature of the proposed Bill is that women can, at least on paper, look forward to a more decent and secure workplace environment and the employer is liable to pay a fine of Rs.50,000 if he fails to comply with the provisions.


The definition of sexual harassment in the Bill broadly follows the one expounded by the Supreme Court in 1997. It includes any physical contact and advances or demand or request for sexual favour, unwelcome sexually coloured remarks or gestures, showing pornography or any other unwelcome physical, verbal or non-verbal contact of sexual nature. It recognises the promise of or threat to a woman’s employment prospects or creation of hostile work environment as sexual harassment at the workplace and expressly seeks to prohibit such acts. It provides protection not only to women who are employed but also to those who enter a workplace as clients, customers, apprentices and daily wage workers, or who are employed in an ad hoc capacity.

The deficiencies in the Bill are significant, and women’s organisations have expressed concern over the non-inclusion of certain categories of the female workforce.

First, although the Bill is comprehensive in its definition, it excludes domestic workers from its ambit. The draft Bills prepared painstakingly by the National Commission for Women and the Ministry of Women and Child Development (MoWCD) in collaboration with women’s organisations had included domestic workers in the definition of “employee”.

According to the earlier drafts, an employee was defined as one “employed at a workplace for any work on regular, temporary, ad hoc or daily wage basis, either directly or by or through an agent, including a contractor, with or without the knowledge of the principal employer, whether for remuneration or not, or working on a voluntary basis or otherwise, whether the terms of employment are express or implied and includes a domestic worker, a co-worker, a contract worker, probationer, trainee, apprentice or by any other name called”.


A new clause in the Bill brings students, research scholars in colleges/universities, patients in hospitals and women in the unorganised sector under its purview but leaves out domestic workers. Most of these features were present in the draft Bills of the NCW and the MoWCD. The NCW’s latest version of the draft Bill, evolved in January 2010, widened the scope to include research scholars and students and like the draft prepared by the Department of Women and Child Development (before it became a full-fledged Ministry), domestic workers were covered in the definition of employee. Workplace, therefore, included “home or dwelling place”.

Even the definition of sexual harassment has undergone some change. While the Bill draws on the definition provided in the Supreme Court guidelines, wherein sexual harassment was defined to include “unwelcome sexually determined behaviour, physical contact, sexually coloured remarks, showing pornography, request for sexual favours or any other unwelcome conduct, whether verbal, textual, physical, graphic, electronic or any other action, not limited to, implied or overt promise of preferential treatment, implied or overt threat of detrimental treatment or threat about present/future employment status, conduct which interferes with work, or creates an intimidating or hostile work environment”, it has excluded humiliating conduct that could constitute a health and safety concern to the woman.

Curiously, the Bill also provides for safeguards against malicious complaints of sexual harassment but with the caveat that a mere inability to substantiate the complaint or provide adequate proof would not make the complainant liable for punishment.

Reacting to this aspect, the All India Democratic Women’s Association (AIDWA), which has welcomed the Union government’s decision to introduce such a Bill, stated that the inclusion of the feature providing punishment for malicious complaints went totally against the Vishaka judgment, which had clearly stated that no action should be taken against a woman for making a complaint. The entire idea of a civil law to deal with cases of sexual harassment, it held, was meant to provide an atmosphere that helped women victims to make complaints, as aggrieved women employees were usually hesitant to lodge complaints, fearing reprisals. AIDWA said that in its experience of dealing with cases of sexual harassment at the workplace, it had found that accusations of false complaints were routinely made against the women victims. The organisation has, therefore, demanded that the clause pertaining to punishments to women for false complaints should be removed.

The Bill provides for a “complaints and redress mechanism”, more or less on the lines of the previous drafts, but it has some flaws. The redress mechanism requires every employer to constitute an internal complaints committee which is to be headed by a woman and has women constituting 50 per cent of its members.

As a large number of establishments (41.2 million of the 41.83 million) in the country have fewer than 10 women workers on their rolls, it will not be feasible to set up a complaints committee in each of them. Hence, the Bill provides for the constitution of local complaints committees by the designated district officer at the district or sub-district level. The idea is to ensure that every woman in any workplace, irrespective of its size or nature, will have access to an effective redress mechanism.

The local committees are expected to inquire into the complaints and recommend action to the employer or the district officer. Fearing the possibility of threat to or aggression against the complainant during the pendency of the enquiry, the Bill entitles the woman to seek interim relief in the form of a transfer, either of her own or for the respondent, or seek leave from work.

A definite time frame has been laid down for the inquiry and disposal of the complaints. The complaints committee is required to complete the inquiry within 90 days and the employer or the district officer has been given 60 days to implement the committee’s recommendations. AIDWA has expressed concern over the discretionary powers given to the district officer in the appointment of the committees. This, it feels, can lead to a certain degree of arbitrariness over the constitution of the committees.

The Bill does not make it clear if the recommendations made by the local committees have to be mandatorily implemented by the employer. AIDWA has demanded clarity on this aspect specifying that no additional inquiries be initiated even as the recommendations for punishment are followed scrupulously. The organisation has also suggested that the Bill include the NCW’s proposal to provide monetary compensation to the victim for the trauma and loss of opportunity suffered by her.

The welcome feature of the proposed Bill is that as the State and Central governments will oversee its implementation, employers are duty-bound to include a report on the number of cases filed and disposed of in their annual report. Organisations that do not prepare annual reports will forward this information to the district officer.

The Bill makes it mandatory for every employer to implement the provisions of law within his/her establishment while the State and Central governments have been made responsible for overseeing and ensuring the implementation of the law.

It is hoped that the Bill will be enacted with the inherent flaws rectified. As far as apprehensions of the misuse of the law are concerned, such a possibility exists with regard to every piece of legislation.

The experience of women’s organisations and people dealing with cases such as these shows that laws pertaining to the safety of women are seldom put to good use.

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