Ensuring judicial accountability

Sansad Bhavan, parliament building of India.

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Provision needed for judges’ premature retirement

SHRI P P RAO IN THE TRIBUNE

Law Minister Veerappa Moily appears to be keen on judicial reforms. He has taken several initiatives, the latest being the Judicial Standards and Accountability Bill, 2010, introduced in the Lok Sabha on December 1 amidst din and noise. The Bill seeks to provide for a mechanism to deal with complaints of the public against judges, give legal shape to the Reinstatement of Values of Judicial Life adopted by the Supreme Court in 1997, make it obligatory for judges to declare their assets and liabilities after assuming office and whenever new assets are acquired, and to replace the Judges (Inquiry) Act, 1968, without affecting the right of the members of Parliament to initiate action for the removal of judges on the ground of misbehaviour or incapacity.

The Bill contemplates constitution of a “complaints scrutiny panel” in the Supreme Court and in every High Court to scrutinise the complaints and refer such of them as need to be enquired into by the Oversight Committee consisting of a retired Chief Justice of India (Chairman), a judge of the Supreme Court, the Chief Justice of a High Court, the Attorney-General and an eminent person nominated by the President (Members). The Oversight Committee would constitute an investigation committee to go into the complaints and thereafter hold an enquiry against the judge concerned, giving him a reasonable opportunity to defend himself. If the charges proved do not warrant removal of the judge, the Oversight Committee may issue advisories or warnings. If it notices commission of any offence by a judge, prima facie, it may recommend his or her prosecution. If the charges proved are serious, warranting removal of the judge, it would make a request to the judge to voluntarily resign, failing which it would advise the President to make a reference to Parliament for the removal of the judge under Article. 124(4).

Removal of a judge can take place only 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 the House present and voting.

The Bill is a step in the right direction. It has some welcome features such as providing for a transparent mechanism for scrutiny and an inquiry into complaints against judges, requiring declaration of assets and liabilities by them and for the exhibition of information on the website of the court concerned, enumerating judicial standards which every judge shall practice, including not permitting any member of his family to appear before him or to use his residence or other facilities provided to him for professional work, etc.

The definition of “misbehaviour” to include not only corruption or lack of integrity but also failure to furnish the declaration of assets and liabilities is significant. The question is: are these provisions enough to ensure accountability. The real problem is not about investigation of or an inquiry into charges of judicial misbehaviour by an impartial committee, but the uncertainty of impeachment by Parliament as it happened in the case of Justice V. Ramaswami, Judge, Supreme Court. His misbehaviour was established in an open and transparent inquiry conducted by a committee with a sitting judge of the Supreme Court as Chairman and Chief Justice of a High Court and a retired judge of the Supreme Court as members. It was expected that Parliament would show due deference to the findings given by such a high-powered committee and give effect to them.

Somnath Chatterjee’s autobiography, “Keeping the Faith”, narrates how the then ruling party aborted the motion of impeachment. Even the judges of the Supreme Court were not unanimous on his continuing to discharge judicial duties while the inquiry was going on. Chief Justice Sabyasachi Mukherjee pronounced an order in open court stating that he would not assign work to Justice Ramaswami till he was cleared of the charges in the inquiry. Justice Ranganath Misra, his successor, constituted a committee of three judges to consider whether the judge could be allowed to function, notwithstanding the inquiry. The committee opined that there was no provision of law in terms of which he could be prevented from discharing his judicial duties. As a result, the judge was allowed to resume work.

Shortly thereafter, Justice K.N. Singh became the Chief Justice of India (CJI). As President of the Supreme Court Bar Association, I requested him not to assign work to the judge. He said that his tenure was very brief (about 18 days) and I should approach his successor. When I approached Chief Justice M.H. Kania, after consulting a few senior advocates, he passed an order stating that if any lawyer appearing in a case raised objections, Justice V. Ramaswami would not hear his case.

The Sub-Committee on Judicial Accountability and the Supreme Court Bar Association filed writ petitions in the Supreme Court, inter alia, praying for a direction that no work should be assigned to Justice V. Ramaswami. A Constitution Bench rejected the prayer, observing that it was for the CJI to decide whether to assign work to the judge or not. The Constitution did not contemplate any such interim direction being given during the inquiry into the alleged misbehaviour of a judge. The Bench hoped that the learned judge would be guided by the advice of the CJI as a matter of convention unless he himself decided as an act of propriety to abstain from discharging judicial functions during the inquiry.

It is possible to suspend a judge facing an inquiry into charges of misbehaviour invoking Section 16 of the General Clauses Act 1897, read with Section 21. The President of India can suspend a judge facing such an inquiry in consultation with the CJI and the collegium. So far, no judge facing an inquiry under the Judges (Inquiry) Act, 1968, has been placed under suspension. It is advisable to insert a provision in the Bill for the suspension of a judge and payment of some subsistence allowance during the period of suspension.

It is high time to consider whether the removal of judges should depend on the vote in Parliament. The perception of corruption by a large number of members of Parliament is likely to be different from the perception of the chairman and members of the inquiry committee or the Oversight Committee. The MPs who notice large-scale corruption right under their nose may or may not appreciate that the misbehaviour of a judge found by the committee warrants his removal. In the prevailing circumstances, is Parliament best suited to take a final view on judges’ misbehaviour? In any event, so long as impeachment is uncertain, it cannot be a deterrent.

Irremovability tends to encourage corruption, indiscipline and irresponsibility. It is not easy to proceed against a judge under the Prevention of Corruption Act either. In K. Veeraswamy’s case, the Supreme Court declared that no criminal case could be registered against a judge unless the CJI was consulted in the matter. This is in addition to the requirement of sanction for prosecution in Section 19 of the Prevention of Corruption Act.

There have been instances where Chief Justices declined to allow prosecution of judges alleged to be corrupt. It is, therefore, necessary to find another way out to get rid of the black sheep and save the judiciary from corruption. It is desirable to make a provision in the Constitution for premature retirement of judges of doubtful integrity at any time without prescribing any minimum qualifying service on the recommendation of the collegium. The problem of judicial accountability will be minimal if proper persons are appointed. To have persons of ability and integrity, the post of a judge should be made attractive to leading and deserving members of the Bar. This will help in ensuring justice of high quality. The Bill is good, but inadequate to solve the problems of judicial accountability.

The writer is a senior advocate, Supreme Court of India.

http://www.tribuneindia.com/2010/20101208/edit.htm#4

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Counsel cannot be allowed to succeed in snatching an order in his favour by advancing threat, says Judge

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LETTER PUBLISHED IN THE HINDU

CHENNAI: This is the letter dated July 2, 2009 written by R. Regupathi, the then Judge of the Madras High Court, to the Chief Justice of the Madras High Court containing the relevant part where there is a specific reference to R.K. Chandramohan.

“On 12.06.2009, at about 2 p.m. during Lunch Recess, while I was in the Chamber, High Court, Madras, my Office Assistant, Mr. Mujibur Ali, informed me that Mr. Chandramohan, Chairman, Bar Council of Tamil Nadu, is waiting and seeking for an appointment to meet me and, immediately, I allowed him to come in. To start with, he discussed about the general subject on Advocates and so proceeding, he said that two persons, who are father and son/accused in a criminal case, are family friends of a Union Minister by name Raja, and that the petition filed by them for anticipatory bail must be considered favourably. Simultaneously, he handed over his mobile phone by saying that the Union Minister is on the line to have a talk with me. Right away, I discouraged such conduct of Mr. Chandramohan and told him that the case would be disposed of in accordance with law, if listed before me.

“Subsequently, on 29.06.2009, second anticipatory bail petition came to be filed for the same accused and on behalf of Mr. Chandramohan (counsel on record for the petitioners/accused), who was present in the court, Mr. Masood, Advocate, argued by stating that some new points need to be submitted and, for such purpose, the Case Diary must be summoned. Adverting to the counter filed by the prosecution and referring to the view I had already taken during the previous occasion and pointing out that there was no change of circumstance to positively consider the case of the petitioners, it was conveyed that there was no valid reason or ground to grant the prayer in the 2 {+n} {+d} petition. It was also observed that the counsel may argue the case in detail, however, this time orders would be passed on merits and they would not be allowed to withdraw the petition.

“Again, the counsel insisted that the case diary must be called for and the case be heard in detail with reference to the materials collected during the course of investigation. I have impressed upon the representing counsel by explicating that a like direction could be given to the prosecution only in the event of the Judge satisfying that such course is inevitable and absolutely necessary in a given situation and that, on mere demands and as a matter of routine, such exercise cannot be undertaken. At that time, Mr. Chandramohan stood up and made a similar demand and when I emphatically declined to accede to his adamant demand, he vociferously remarked that the court is always taking sides with the prosecution and not accepting the submissions made by the counsel for the accused while giving importance to the Prosecutor.

“On such pointless remark, I said that the counsel engaged to argue on his behalf has made his submission and he is not supposed to pass such slanderous and derogatory remarks; for, all these days, the court has been passing orders after hearing the parties and assessing the cases on their own merits and in accordance with law. In spite of that, Mr. Chandramohan insisted that the Case Diary must be summoned and the matter be adjourned to some other day. Since Mr. Chandramohan highly raised his voice and his approach towards the court was quarrelsome, I told him that a person like him, an advocate holding position as Chairman of a State Bar Council, should not behave in such a fashion. Still the learned Advocate was outburst and uncontrollable, and I observed that a counsel, who made an attempt to exert influence on the court by using the name of a Cabinet Minister, cannot be allowed to succeed in snatching an order in his favour by advancing threat. Due to such odd experience, I had to direct the Registry to place the papers before Your Lordship for obtaining orders to post the case before some other learned Judge.

“The case concerned was taken up at the end in the afternoon and inside the court hall, there were about 4 to 5 Advocates present and no one from the Press was there. That being so, the oral observations actually made came to be translated by the Print and Electronic Media with their own interpretations and ideas …….

“I have written this letter/report to apprise Your Lordship the actual state of affairs Involved.”

http://www.hindu.com/2010/12/08/stories/2010120857401400.htm

Court orders suspension of Chairman of Tamil Nadu Bar Council

High Court Madras

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JUDGE THREAT CASE

K.T. Sangameswaran IN THE HINDU

CHENNAI: The Madras High Court on Tuesday ordered the suspension of the membership of R.K. Chandramohan and consequently his Chairmanship of the Bar Council of Tamil Nadu and Pondicherry (BCT) forthwith for an alleged attempt to influence a High Court Judge using the name of the then Union Minister A. Raja in a matter relating to an anticipatory bail plea.

In its 78-page common order on two public interest litigation petitions, a Division Bench comprising Justices F.M. Ibrahim Kalifulla and M.M. Sundresh said that apart from attempting to influence the Judge R. Regupathi (since retired), Mr. Chandramohan was stated to have behaved, in the words of the Judge, in a very unruly manner in the open court.

The Bench said the petitioner should file a formal complaint, along with the High Court order, to the BCT within two weeks. He should file a complaint copy with the Bar Council of India (BCI) simultaneously. Mr. Chandramohan should not be permitted by the State Bar Council to function as chairman pending disposal of the disciplinary action by the BCI.

In a petition, the petitioner, Elephant G. Rajendran, sought a writ against Mr. Chandramohan directing him to explain under what authority he held the office as Chairman of BCT. In the other petition, he sought a direction to the BCI to initiate appropriate action against the BCT Chairman.

The petitioner submitted that an anticipatory bail application filed by a medical practitioner came up before Justice Regupathi on June 29 last year and Mr. Chandramohan appeared on behalf of the accused. During the hearing, the Judge stated that “a Union Minister had called me to exert influence in favour of accused and to release the petitioner/accused on anticipatory bail. You yourself know everything.”

The petitioner contended that Mr. Chandramohan’s conduct in casting aspersions against the Judge was gross contempt and interfered with the administration of justice. He had used the name of a Union Minister for achieving an illegal action. Therefore, he should be disqualified from the post.

Following a direction from the Judge, the High Court Registry produced a letter dated July 2, 2009, written by the Judge to the Chief Justice of Madras High Court in which he had stated that on June 12, 2009 while he was in his chamber, Mr. Chandramohan met him and said that two persons who were family friends of the Union Minister had filed the petition for anticipatory bail in a criminal case and it must be considered favourably. He also handed over his mobile phone saying that the Union Minister was on the line to talk to the Judge.

Right away, the Judge said, he discouraged such conduct and told Mr. Chandramohan that the case would be disposed of in accordance with law. On June 29, in the open court the advocate vociferously remarked that the court was always taking sides with the prosecution and not accepting the submission made by the counsel for the accused in the case while giving importance to the prosecutor. Later, the Judge directed the Registry to place the papers before the Chief Justice for posting the case before some other Judge.

In its order, the Bench said there was no reason to doubt the veracity of the Judge’s statement in the absence of allegations of ill will or mala fides against the Judge. The conduct of the BCI Chairman in having maintained silence in his counter affidavit went to show to a very large extent that in effect he admitted the allegations. He neither repented nor displayed any conduct of remorse. If really such an incident had not taken place, the first person to have refuted the Judge’ s statement should have been Mr. Chandramohan.

The Bench observed that the Judge’s reaction was much more courteous than was expected. What had been alleged against Mr. Chandramohan by the Judge did call for stringent action at that point of time itself by handing him over to the appropriate authorities. Unfortunately, Mr. Chandramohan instead of realising the Judge’s magnanimous attitude displayed a much more disastrous attitude by behaving in an unruly manner in the court hall when the Judge had no other option except to reveal in the open court the monstrous and unpardonable behaviour of the advocate.

It said the magnitude of the behaviour of Mr. Chandramohan “was unprecedented and the same had to be dealt with an iron hand to ensure that such a behaviour was not even dreamt to be attempted by any other unscrupulous element under the garb of wearing the glorious robes of an advocate.”

Having regard to the order passed and directions issued, the Bench said it was not now inclined to take any proceedings for contempt.

http://www.hindu.com/2010/12/08/stories/2010120857391400.htm

Court admits it erred, upholds commutation of death penalty

J. Venkatesan in THE HINDU

NHRC can intervene to protect human rights: Bench

SUPREME COURT OF INDIA

SUPREME COURT OF INDIA

New Delhi: In a rare instance, the Supreme Court has admitted that its earlier judgments, in one and the same case, upholding the death sentence awarded by the trial court and confirmed by the High Court were a mistake and violation of human rights of the accused. The court in a second review upheld the Assam Governor’s order commuting the punishment to life sentence.

A Bench of Justices Aftab Alam and A.K. Ganguly in a recent order said: “Instances of this court’s judgment violating the human rights of the citizens may be extremely rare but it cannot be said that such a situation can never happen. On a review of the reasoning in the petition, we find that the finding in the judgment is vitiated by errors apparent on the face of the record.”

Inalienable right

Writing the judgment, Justice Ganguly said: “Human rights are the basic, inherent, immutable and inalienable rights to which a person is entitled simply by virtue of his being born a human. They are such rights which are to be made available as a matter of right. The Constitution and legislation of a civilised country recognise them since they are so quintessentially part of every human being. That is why every democratic country committed to Rule of Law put into force mechanisms for their enforcement and protection.”

In the instant case, the Assam trial court held Ram Deo Chauhan alias Raj Nath Chauha guilty of murdering four members of a family in March 1992 and slapped the death penalty on him. This was confirmed by the Gauhati High Court and later by the Supreme Court in July 2000.

Review petition

In a review petition, the convict took the stand that he was a minor aged 16 at the time of the offence and the hence the death penalty could not have been awarded by the courts below.

A three-judge Bench by a majority of 2:1 rejected the review petition and again confirmed the death sentence. But Justice K.T. Thomas, in his minority judgment, felt that since there was a doubt whether Ram Deo was a minor or not when the offence was committed, it would be in the interest of justice to commute death to life imprisonment.

Later, acting on a an article written by Ved Kumari, Professor of the Faculty of Law, University of Delhi, the National Human Rights Commission headed by the former Chief Justice of India J.S. Verma felt that Justice Thomas’ reasoning was the correct approach and recommended that the death sentence be commuted and the Governor accordingly did so.

However, on a writ petition, the Governor’s order was set aside by the Supreme Court in 2009 holding that the NHRC had no jurisdiction to intervene in the matter.

Governor’s order restored

Allowing the review petition against this order, the Bench said: “On a very careful consideration of this issue, this court thinks that in view of various questions of far-reaching importance having been raised in this second review, it may be a travesty of justice if this petition is dismissed. If a person has been guaranteed certain rights either under the Constitution or under an international covenant or under a law, and he is denied access to such a right, then it amounts to a clear violation of his human right and NHRC has the jurisdiction to intervene for protecting it. We are of the opinion that in doing so, NHRC acted within its jurisdiction.”

The Bench restored the Governor’s order of commutation of the death sentence.

http://www.hindu.com/2010/12/08/stories/2010120862781700.htm