UNDERCOVER/STING OPERATIONS- JOURNALISTIC ETHICS- A LAW COMMISSION OF INDIA CONSULTATION PAPER

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BY LAW COMMISSION OF INDIA

1.       Technology is offering many ways to invade private and professional lives. The media with the help of private entities is making effective use of such technological opportunity to carry out the sting operations (for short, SO) to expose corruption, immorality, exploitation, flouting of the rule of law by those holding public offices, influential persons and businessmen.    However, it is noticed that in some high profile criminal cases, the media by conducting SO and broadcasting the same on TV channels regularly, have been prompted by a motive to play up the emotions and sensationalise the events for a commercial purpose.  It has a tendency to generate public opinion in a particular direction much to the embarrassment of law enforcement agencies.  Instances are not lacking where instant SMS polls have been held to decide between guilt and innocence.  Such parallel proceedings by media in a criminal case pending before a court of law can create a forceful impression on the public minds about guilt and might affect a fair trial and uninhibited verdict which is a part of constitutional guarantee.

2.       On one hand, SO serves the public interest by strengthening the democratic framework by disseminating information about facts of vital interest to society that are not easy to obtain by simple requests or efforts. The records from the world over show that without the use of SO, public would have never learnt about many economic and political wrong doings. On the other hand, some recent incidents prove the misuse of SO by media and private entities to increase the channel viewership, settle political scores, harm corporate interests, malign reputation etc. Such SO that are carried on with ulterior motives not only harm the person and the institution trapped in the sting, but has the potential to shake people’s faith in the institutions and create a general atmosphere of cynicism in the society.

3. The only law we have at the moment is the Cable Television Networks (Regulation) Act, 1995 and the Rules framed thereunder.   This Act and Rules being a product of era when SO had not arrived on the television scene, do not have any direct provisions related to the SO. At the same time, some provisions of this Act may be applied to check malpractices associated with the SO because Sections 3 and 5 read with the Programme Code referred to in Section 6 lays down that no programme can be transmitted/re-transmitted on any cable service which contains anything obscene, defamatory, deliberate, false and suggestive innuendos and half truths.

4. However, some TV channels were found flouting these provisions.   In the recent past, instances of Television channels exceeding the limits of decency by using SO as a tool for the on-going reality shows to expose waywardness or infidelity of a spouse, boyfriend, etc. have been noticed. Such SO showing private life of common man and woman are not conducted for exposing public wrongs and do not serve any public interest or public purpose.  Further, manipulated and fabricated SO noticed in several instances have sullied the image of media and damaged the reputation of targeted persons irretrievably. These kinds of SO are exploiting technology available to intrude private space thereby violating the right to privacy and taking the civilization backward.

5. There is therefore need felt to evaluate whether TV channels are fulfilling their social responsibility in revealing private wrongdoing? Whose interests are served by such expose? How far they can be allowed to invade the right to privacy, when expose does not serve a legitimate public interest? Even if SO serves public interest in some way, how far the undercover operators can go? Can they themselves become party to crime to unearth the crime?

6. The Committee on Petitions of Rajya Sabha in its report dated 12.12.2008 made the following pertinent observations:

“The Committee feels that the electronic media should not air information gathered though SO unless and until there is ample evidence to conclusively prove the guilt of the alleged accused; if it is required in public interest, the version of the alleged accused should also be aired simultaneously and with equal prominence…Where a SO is found to be false and fabricated, the media company ought to be given stringent punitive punishment commensurate with the damage caused to the innocent individual…  The Committee is of the view that freedom of the press is essential for healthy functioning of democracy; however, democracy comes with responsibility. Freedom of the press case responsibility on media as well. The Committee therefore expects the media to contribute to success of democracy by protecting the freedom of individual including his/her right to privacy. The Committee observes that even though the right to know takes precedence over the right to privacy, the right of privacy should not be encroached upon, under the garb of freedom of the Press unless prompted by genuine public interest. Therefore the Committee advocates following of a middle path approach between both the rights, to meet the ends of justice.”

6.1 The Committee of Ethics too in its proceedings dated 24th Feb 2006 concerning the SO – ‘Operation Chakravyuh’ stressed the need to evolve a regulatory mechanism for undercover operations which have the potential of encroaching upon the right to privacy of an individual and further observed that the Committee feels that the electronic media should also put in place a self regulatory mechanism to ensure justice and fair play in their functioning.

7.       The Government of India proposed to set up an independent regulatory authority viz., the Broadcasting Regulatory Authority of India (BRAI) under a proposed law – the Broadcasting Services Regulation Bill 2007. The accompanying Content Code revised in March 2008 lays down in detail what content can be aired and what cannot be, but, it has met  strong  opposition from  the  media  agencies  and  channel  owners  who  favour self  regulation.   According to the very recent newspaper reports, the Hon’ble Minister of I&B stated that a National Broadcasting Authority – a statutory body will be set up, but it will not regulate the content.  However, the I&B Ministry has devised certain non-statutory and informal guidelines and machinery to check objectionable publications/exhibitions.  For instance, the Electronic Media Monitoring Center has been set up to undertake monitoring of content of various FM and TV channels for any violation of Programme Code, Advertisement Code and the provisions of Cable TV Networks Regulation Act etc.

7.1 While so, the News Broadcasting Association (NBA) have been formed to put in place a self-regulatory mechanism and accordingly the News Broadcasting Standard Authority (NBSA) was set up in October 2008. The NBSA  consists of an eminent retired Judge, eminent editors associated with broadcasting and eminent persons having special knowledge in the fields of law, education, medicine, literature, public administration etc. It has formulated a Code of Ethics and Broadcasting Standards governing the broadcasters and television journalists. ‘Broadcaster’ is defined to mean any association of persons/organization or corporate entity being member of NBA who owns, manages and controls a satellite or cable T.V. channels that comprises exclusively news and current affairs contents or capsules as part of its programming and the said term includes the editor. The said Authority, on the basis of a complaint or otherwise, can proceed to hold an inquiry into the alleged violation of code of conduct and after giving an opportunity of hearing to the broadcaster concerned, may for reasons recorded in writing, warn, censure or impose a fine upon the broadcaster and or recommend the concerned authority for suspension/revocation of license of such broadcaster. The avowed purpose of the principles of self regulation is stated to be “to empower the profession of Television Journalism by an abiding set of values, which will stand the test of time and ensure that balanced and comprehensive journalism flourishes to strengthen India’s democracy”. As regards sting operation, it is stated thus in paragraph 9 of the

Code of Ethics:

“As a guiding principle, sting and undercover operations should be a last resort of news channels in an attempt to give the viewer comprehensive coverage of any news story. News channels will not allow sex and sleaze as a means to carry out sting operations, the use of narcotics and psychotropic substances or any act of violence, intimidation, or discrimination as a justifiable means in the recording of any sting operation….. News channels will as a ground rule, ensure that sting operations are carried out only as a tool for getting conclusive evidence of wrong doing or criminality, and that there is no deliberate alteration of visuals, or editing, or interposing done with the raw footage in a way that it also alters or misrepresents the truth or presents only a portion of the truth.”

7.2 Whether such a self-regulatory mechanism has proved to be adequate and effective and whether it would obviate the need for a statutory mechanism to regulate the contents of broadcasting including SO and taking appropriate action under law, is a matter of debate.

8. In the UK, the Broadcasting Standards Commission exists as the statutory body for regulating both standards and fairness in text, cable and digital services broadcast over television and radio, both terrestrial and satellite. Established by the Broadcasting Act, 1996 it has to: (i) produce codes of conduct relating to standards and fairness; (ii) consider and adjudicate on complaints; (iii) monitor, research and report on standards and fairness in broadcasting. It has power to require recordings of broadcast material and written statements. It may also hold hearings. Its decisions are published regularly and broadcasters must report any action they have taken as a result. It is accountable to the Parliament and each year publishes a full report of its work. It is financed by the Government and broadcasters and its accounts are subject to scrutiny by the National Audit Office.

9. The decided case law from Courts on the subject of SO has not laid down any clear cut principles or uniform approach on the legality and extent of permissibility. However certain broad principles are discernible such as the considerations of public interest, the need to recognize the fundamental rights of the targeted persons including the right of privacy and liberty.   Also, the illegality inherent in the publication/exhibition of fabricated and misleading content obtained by SO which is universally condemned, is recognized by the courts in India.

10. The Law Commission of India, in view of sharp and divergent views with emotive and logical pleas that are raised regarding permissibility of SO, is eliciting suggestions from the public, including the media representatives, the NGOs, academia, professional bodies, social activists, officials and elected representatives on a set of Questionnaire prepared mainly regarding: whether there is necessity to control the misuse of SO by way of a regulatory law? what should be the nature and extent of that regulation to check unwarranted invasion of right to privacy?   what kind of mechanisms has to be put in place to prevent publication/broadcasting of the content of SO so as to control fabricated versions of the SO and to protect larger public interest?

11. The response to this questionnaire can be sent to the e-mail address given in the website of the Commission or to the postal address of the Commission by 30th November, 2010.

Questionnaire:

1.           The media led SO that expose corrupt and criminal activities of a person accused in a case create a widespread public perception of the guilt of the accused and the regular broadcast on a television/internet medium strengthens such public perception and might influence a trial court judge who has to independently conduct a trial in an atmosphere free from pressures and inhibitions. In order to have a fair and objective trial by courts, should the State prohibit or regulate the broadcast /publishing of SO expose in such a case?

2.           In R.K. Anand’s case, the Supreme Court observed that the media is not free to publish any kind of report concerning a sub-judice matter or to do a sting as it pleases in a pending trial matter.  It was also observed that a sting based on deception would attract the legal  restrictions with far greater stringency.  More or less on similar lines, the Supreme Court commented in a recent case related to Manu Sharma that the distinction between trial by media and informative media should always be maintained. Trial by media should be avoided particularly at a stage when the suspect is entitled to the constitutional protections. Invasion of his rights is bound to be held impermissible. Do you suggest therefore regulation of a SO in a sub-judice matter by restricting its broadcast/publication or placing a complete ban thereof in a sub-judice matter?

3.           Should a restraint be placed on SO where a special machinery is created under the Statute like the Prevention of Corruption Act, the Narcotics Drugs and Psychotropic Substances Act, etc to unearth and investigate specific crimes under those Acts?

4.           (a) With a view to expose corruption or anti-social activities prevalent in society, and without any other ulterior/objectionable motive, a person (including a media representative) conducts a SO against a public servant or a middleman. Should he/she enjoy immunity against possible prosecution for the illegal acts committed in the course of such SO?

b.           It was observed in a case decided by the Delhi High Court that the immunity to the bribe giver is available in a case where he/she is unwilling to pay the bribe and approaches the police in order to get the public servant trapped. Whether the scope of immunity, provided under section 24 of the Prevention of Corruption Act, should be extended further so that the journalists etc. undertaking SO are protected?

5.           It has been observed that some of the SO(s) make considerable intrusion into private lives of people without serving any public interest and such operations are conducted by the television channels solely to increase their viewership. In this context, would a sting qualify as investigative journalism when firstly, there was no obvious relevance of the sting to the public and secondly, if there was clear ensnarement to commit the offence?

6.           If SO turns out to be manipulated or distorted or is published in a misleading or reckless manner, should it be treated as a distinct offence? If so, what punishment should be appropriate? What other sanctions do you suggest?

7.           It is said that a proper balance should be struck between the right to privacy of an individual and public interest likely to be served by SO.  What suggestions do you make in ensuring that SO does not substantially impinge on the right to privacy and thus the intrusion of the same is reduced to minimal? What restrictions could be imposed by law in this regard? What according to you may constitute unwarranted and palpable invasion of the right to privacy?

8.           (a) Please offer your views as to which test – ‘public interest’ or ‘infringement of privacy’ – should be the predominant test for judging the legality or permissibility of the SO. Which of them may be given more consideration by a regulatory law, if enacted? Even if the test of public interest is broadly satisfied, should the regulatory law should still consider the permissible extent and degree of invasion to the right of privacy as a relevant factor?

b.           Do you think that the means and modalities of expose should be irrelevant wherever public interest is served in some degree or the other?

9.           In the false SO of a School Teacher case, the Delhi High Court observed that the Court trusts that all TV channels/Media will take steps and prohibit its reporters from producing or airing any programmes which are based on entrapment or fabricated and intrusive. The court also observed that TV reporters and editors should take steps for drawing up a self-regulatory code of conduct. It implies that such Code of Conduct should be one capable of being enforced effectively.  Do you think that the NBSA set up by News Broadcasting Association is adequate and effective enough to put in check on the undesirable practices associated with SO and to restrain the publication/exhibition of objectionable contents of SO?

10.        In the said case, the Delhi High court disapproved of the tactic of using a budding journalist eager to make a name in the media world to pass off as a student of school to trap school teacher in a motivated SO. It relied on the US Supreme Court decision and article by a well known TV journalist to justify the use of hidden cameras when it is for capturing the event that would take place whether or not the camera was there and deploring the practice of entrapment to induce commission of crime so that the Government may prosecute. The High Court approvingly referred to the observations in the US Supreme Court judgment that the Government should not play on the weakness of an innocent party and beguile the party into committing a crime which the party otherwise would not have attempted. The State must not punish an individual for an alleged offence which is the product of the creative activity of its own officials. The High Court held that this can be applied in the Indian context also to the media.  Do you agree with the above suggestion that SO should only be used for capturing what is already going on and should not create a scoop by testing individuals by putting them through inducement test?

11.                   In its judgment rendered on 14th December 2007, the Delhi High Court issued guidelines to be followed when undertaking a sting and observed that the Ministry of I&B may consider their incorporation in the proposed law – the Broadcasting Services Regulation Bill of 2007. What are your suggestions in this regard? According to these guidelines:

1. A channel proposing to telecast a SO shall obtain a certificate from the person who recorded or produced the same certifying that the operation is genuine to his knowledge.

….

3. Permission for telecasting a SO be obtained from a committee appointed by the Ministry of Information and Broadcasting. The said committee will be headed by a retired High Court Judge to be appointed by the Government in consultation with the High Court & two members, one of which should be a person not below the rank of Additional Secretary and the second one being the Additional Commissioner of Police. Permission to telecast SO will be granted by the committee after satisfying itself that it is in public interest to telecast the same. This safeguard is necessary since those who mount a SO themselves commit the offences of impersonation, criminal trespass under false pretence and making a person commit an offence.

4. While the transcript of the recordings may be edited, the films and tapes themselves should not be edited. Both edited and unedited tapes be produced before the committee.

7. The Chief Editor of the channel shall be made responsible for self regulation and ensure that the programmes are consistent with the Rules and comply with all other legal and administrative requirements under various statutes in respect of content broadcast on the channel.

8. The subject matter of reports or current events shall not:

(a) Deliberately present as true any unverified or inaccurate facts so as to avoid trial by media since a “man is innocent till proven guilty by law”;

11. Infringement of privacy in a news based/related programme is a sensitive issue; therefore, greater degree of responsibility should be exercised by the channels while telecasting any such programmes as may be breaching privacy of individuals.

12.                   By capturing the evidence of a criminal activity through SO against a person not yet accused of an offence and publishing the same in print/electronic media, the chances of tampering or suppressing the evidence might diminish. At the same time, such publication has the tendency to defame a person whose version is not available. Could it be yet another reason to regulate the publishing of SO through law?

13.                   Where the SO covers a crime or a gory incident concerning a child victim or a juvenile accused, what restrictions ought to be placed on the media publicity details of SO?

14.                   What should be the procedure to ensure that an expose by private entity or media led SO is not used for taking undue advantage? Who will regulate its transmission/ publication/ withholding? With whom this expose should be deposited? Should there be an independent statutory body to grant permission, monitor and take custody of all the materials collected by a SO?

P.N: It is clarified that the Commission is not contemplating to go into the issues concerning mode of proof of material obtained by way of SO, their evidentiary value and the defences that may be open to the accused in a trial.

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Human smuggling : What Punjab must do

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Human smuggling, illegal trafficking and unethical immigration businesses are on the rise in India and other countries. The Punjab Prevention of Human Smuggling Act 2010 is a welcome move. Once it gets the President’s assent, the state government should draft comprehensive rules to enforce the legislation in letter and spirit

Ranjit Malhotra IN THE TRIBUNE

THE Punjab Prevention of Human Smuggling Act, 2010, is awaiting the President of India’s assent. It is an important piece of legislation as it seeks to regulate the profession of travel agents to check their illegal and fraudulent activities and malpractices of those involved in the organised human smuggling in Punjab.

It has several noteworthy features. ‘Human smuggling’ and ‘travel agent’ are well defined. Travel agent is defined as a person in a profession that involves arranging, managing or conducting affairs related to sending people abroad. It includes consultancy for permanent emigration, obtaining education, work, travel for tourism, cultural entertainment or musical shows, medical treatment, spreading or preaching religion and so on.

The key focus of the legislation is on human smuggling as opposed to human trafficking. The distinction is crucial. Human smuggling facilitates illegal entry of people from one country to another. It has a cross border element of voluntary cooperation without any coercion or undue influence. In contrast to human trafficking, there are no victims in human smuggling. Human trafficking entails slavery and possibly has no international element.

It provides for a much-needed licensing regime for agents and requires compulsory bank guarantees. Clearly, this will nail down middlemen of all sorts and fly-by-night street operators. The legislation is not without teeth because it gives the power of search, seizure and arrest. Under the existing Central legislation, travel agents can be booked under Section 420 of the Indian Penal Code, in terms of which it is very difficult to prove the offence of cheating as most transactions take place in cash. But the Punjab legislation gives more powers to the police in terms of offences being cognisable and non-bailable.

A separate mechanism has been carved out as the legislation seeks to create specially designated courts for trials under the new Act. It identifies defined variable punishments for offences. There is a provision for filing complaints by aggrieved persons to judicial magistrates for trial before the special courts. The special court is authorised to decide whether any illegally acquired property is liable to be confiscated. Dishonest misrepresentation to have wrongful gain for inducing, deception, cheating or allurement for the activities carried out by the travel agents are punishable. There is also a caveat for legitimate business promotion. If any travel agent wants to advertise or hold seminars, he must notify the competent authority with details of advertisement of such seminars.

As the rules so framed by the Punjab government after the Presidential assent should be comprehensive and free from ambiguity, the authorities concerned would do well to consider the following issues. The locus standi of aggrieved persons should be given a broad sweep without hinging on technicalities. Quite often, the victims of human smuggling are stranded en route in hostile conditions in foreign countries. Their next of kin in such a situation should be empowered to file criminal complaints or claims for compensation against erring parties. Foreign missions in the consular district of New Delhi should also be brought within the ambit of aggrieved persons so that they can lodge criminal complaints against habitual offenders who deal in bulk fraudulent applications.

In a world without borders, the 2010 Act like the provisions of the Hindu Marriage Act, 1955, should also have extra-territorial application. It is common knowledge that cross border cartels operate from different jurisdictions right from the sending country to the receiving country. No complaint should fail on the ground that monetary consideration was paid outside India and that part of the cause of action took outside the territories of India.

There is need for a strict code for advertising by travel agents and immigration consultancies. There should be an express prohibition on all immigration-related advertisements in the media — print and electronic — for not advertising or canvassing the number of visas allegedly procured by their consultancies. Quite often, such figures of successful applicants are exaggerated and inflated and there is no way by innocent and gullible members of the public to check such projected figures. As for offences, the rules should be applicable to any immigration consultancy, agent, franchisee operating even outside Punjab, if the principal office of the branch of such a concern is situated within Punjab. There should be a clear embargo on canvassing projected time schedules for permanent residency/ settlement in any foreign country.

The provision for a bank guarantee to be furnished by all such licensed immigration operators and travel agencies should be on ad valorem basis and the amount of the bank guarantee should be directly proportional to the number of applications handled by any such consultancy or agency. In terms of compliance requirements, the rules under the said legislation should provide that any licensed immigration consultancy/ travel agency or operator, should file a mandatory quarterly return on the number of applications handled by any such agency or operator with the steering committee constituted under the rules or with the Deputy Commissioner of the respective district, which shall be a pre-condition for the renewal of the annual licence.

To protect students, the rules should prohibit payment of the handsome commission paid to the local agents and franchisees in India by low level foreign universities from the tuition fees paid by the students in India. Over the years, this has promoted a different type of an industry giving fillip to lot of illegal activities on the side to exploit the student avenue. Mass awareness is important. The rules should direct Regional Passport Offices (RPOs) in Punjab to adequately publicise this beneficial piece of legislation, in their respective offices. For the convenience of the public, especially rural youth hailing from the far flung areas of Punjab who are victims of cheating by unscrupulous agents and dubious touts, copies of the legislation translated in Punjabi should be made available at the said RPOs.

One needs to look at the entire gamut of human smuggling. The NRI marriages in Punjab are a very serious problem, especially in terms of abandoned brides. Marriage is also used as a very convenient camouflage for human smuggling. Marriage palace operators provide complete packages to facilitate such commercial marriages. The rules under the legislation in question should bring within its ambit abettors and perpetrators of such sham marriages, or victims of marriages of convenience.

As part of corporate social responsibility obligations, business houses in Punjab should be motivated to take suitable initiatives to publicise the evil effects of human trafficking and the dangers involved in patronising fly-by-night travel agents. The Chief Secretary of Punjab, after constituting a Core Steering and Monitoring Committee, should regularly review the enforcement of the legislation and maintain comprehensive data of complaints and convictions under the said legislation. The Chief Secretary can include in the committee people from different walks of life. This could as well give an opportunity to review the working of the legislation. The core panel could have a dedicated website and email address to create direct access from the public for their viewpoints.

The rules could well stipulate that the Punjab government in close cooperation with the Ministry of External Affairs and Ministry of Overseas Indians Affairs should also interact with all the Embassies and Foreign Missions in the consular district of New Delhi to share their international data of habitual immigration offenders, networks and cartels engaged in the business of human trafficking and human smuggling with the MEA and the MOIA so that they can further share and transmit the available data with the Punjab government. This will prevent illegal migration and ensure greater cross-border cooperation with all member states.

The rules could provide for an Immigration Ombudsman at the regional and district level. This soft option could be organised by complainants who do not have the resources to invoke the due process of law. A savings clause regarding the consumer courts’ jurisdiction for deficiency in service and for refund/ compensation should also be there explicitly in the rules so that the offenders cannot possibly attempt to take refuge of the technicalities of law. We have to wait and see which way the pendulum swings down the road. Hopefully, the letter and spirit of the rules will be at par with the Punjab government’s laudable effort in framing the 2010 legislation.

The writer, a Felix Scholar and associated with Wilton Park, a UK-based think-tank, specialises in areas of immigration and private international law in Chandigarh

Migration :Global perspectives

  1. Over the years, Wilton Park, a leading UK-based think-tank for discussion of key international policy changes, has been debating key issues relating to migration policies, themes, perceptions, perspectives, trends and its future policy options. According to its 2007 report, legal migration is the most sensitive subject for discussion, particularly in terms of the public debate over numbers.
  2. The Interpol estimates that India contributes to the largest illegal population in Europe, and an estimated two million Indians cross international borders illegally every year.
  3. Human trafficking has now become a larger ‘industry’ worldwide than drug trafficking. In India alone, it is a multi-million dollar business.
  4. Globally, remittances are estimated to be equivalent to three times development aid.
  5. Members of the European Union already co-operate on shared mechanisms within borders such as Eurodac, a European Union-wide electronic system for the identification of asylum-seekers and illegal immigrants.
  6. FrontEx is an independent European agency funded by the EU and individual member states. With headquarters in Warsaw, it aims to coordinate the operational co-operation of their external borders.

Patterns of immigration

  1. According to Wilton Park’s 2008 findings, patterns of immigration and emigration are generally shaped by the long-term economic performance of a country.
  2. There is likely to be increased competition amongst the more developed countries for highly skilled migrants. On current demographic projections, China, for example, may change from being a source to a destination country.
  3. Political, religious and ethnic persecution are the key drivers of forced migration, but new displacement scenarios are evolving, including environmental degradation, declining resource, population growth and climate change.
  4. Factors vary regionally. In South Asia, migration is a well-established livelihood option. In the European Union, migration has been facilitated by the right to free movement of labour.
  5. Governments will continue to control illegal migration to facilitate the migration flows which they do want.
  6. Public attitudes to migration are frequently negative.
  7. Policy responses from South Asian countries have been ad hoc; it is one of the few areas where no regional process is in place for strategic management of migration.
  8. There are no real indications of the emergence of a leading international migration agency. The International Organisation for Migration could be a candidate.

Areas of concern & reform

  1. Need to enact a Central legislation to check illegal trafficking, human smuggling and thriving unethical immigration businesses.
  2. Imperative need for a consolidated work permit visa regime in India for inward foreign migration especially for highly skilled foreign workers which could also be a good source of revenue.
  3. Spreading of awareness and education of the pitfalls of illegal immigration.
  4. Need to establish managed migration channels. —Ranjit Malhotra

http://www.tribuneindia.com/2010/20101217/edit.htm#6

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The Judicial Standards and Accountability Bill, 2010

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PRS LEGISLATIVE WEBSITE

Bill Summary

  • The Judicial Standards and Accountability Bill, 2010 was introduced in the Lok Sabha on December 1, 2010. The Bill was introduced by the Shri M. Veerappa Moily, the Minister of Law and Justice.
  • The Bill seeks to (a) lay down judicial standards, (b) provide for the accountability of judges, and (c) establish mechanisms for investigating individual complaints for misbehaviour or incapacity of a judge of the Supreme Court or High Courts. It also provides a mechanism for the removal of judges.
  • The procedure of removal of judges is presently regulated by the Judges (Inquiry) Act, 1968. The Bill seeks to repeal the Act.
  • The Bill requires judges to practise universally accepted values of judicial life. These include a prohibition on: (a) close association with individual members of the Bar who practise in the same court as the judge, (b) allowing family members who are members of the Bar to use the judge’s residence for professional work, (c) hearing or deciding matters in which a member of the judge’s family or relative or friend is concerned, (d) entering into public debate on political matters or matters which the judge is likely to decide, and (e) engaging in trade or business and speculation in securities.
  • Judges will also be required to declare their assets and liabilities, and also that of their spouse and children. Such declaration has to take place within 30 days of the judge taking his oath to enter his office. Every judge will also have to file an annual report of his assets and liabilities. The assets and liabilities of the judge will be displayed on the website of the court to which he belongs.
  • The Bill establishes two authorities to investigate complaints against judges. The Two authorities are:
    1. National Judicial Oversight Committee; and
    2. Scrutiny Panel.
  • Initial complaints will be made to the Oversight Committee, and they will be referred to the Scrutiny Panel.
  • A Scrutiny Panel will be constituted in the Supreme Court and every High Court. It shall consist of a former Chief Justice and two sitting judges of that court. If the Scrutiny Panel feels there are sufficient grounds for proceeding against the judge, it shall report on its findings to the Oversight Committee. If it finds that the complaint is frivolous, or that there not sufficient grounds for inquiring against into the complaint, it shall submit a report to the Oversight Committee giving its findings for not proceeding with the complaint.
  • Frivolous or vexatious complaints may be penalised by the Oversight Committee.
  • The Oversight Committee will consist a retired Chief Justice of India as the Chairperson, a judge of the Supreme Court nominated by the sitting Chief Justice of India, a Chief Justice of the High Court, the Attorney General for India, and an eminent person appointed by the President.
  • If the Scrutiny Panel recommends investigation into a complaint against a judge, the Oversight Committee will constitute an investigation committee to investigate into the complaint. The inquiry committee will consist of not more than three members. It will have some powers of a civil court and also the power to seize documents and keep them in its custody.
  • The investigation committee will frame definite charges against the judge and shall communicate the same to the judge. The judge shall be given an opportunity to present his case, but if he/ she chooses not be heard, the proceedings may be heard without him present.
  • If the charges against a judge are proved, the Oversight Committee may recommend that judicial work shall not be assigned to the judge. It may also issue advisories and warnings if it feels that the charges proved do not warrant the removal of the judge. If the Committee feels that the charges proved merit the removal of the judge, it shall (a) request the judge to resign voluntarily, and if he fails to do so, (b) advise the president to proceed with the removal of the judge. In such a case, the President shall refer the matter to Parliament.
  • A motion for removal of a judge can also be introduced in Parliament by members of Parliament. In such a case, the Speaker or the Chairman can either admit the notice, or refuse to admit it. If the notice is admitted, the matter shall be referred to the Oversight Committee for inquiry.
  • The Bill exempts documents and records of proceedings related to a complaint from the purview of the Right to Information Act, 2005. The reports of the investigation committee and the order of the Oversight Committee shall be made public.

Source: http://prsindia.org/index.php?name=Sections&action=bill_details&id=6&bill_id=1399&category=46&parent_category=1

FOR THE BILL CLICK THE LINK:

Judicial standard and accountibility bill, 2010

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