LAW RESOURCE INDIA

RECOMMENDATIONS/OBSERVATIONS OF PARLIAMENTARY STANDING COMMITTEE ON PERSONNEL, PUBLIC GRIEVANCES, LAW AND JUSTICE ON THE JUDICIAL STANDARDS AND ACCOUNTABILITY BILL, 2010

Posted in JUDICIAL REFORMS, JUDICIARY, JUSTICE by NNLRJ INDIA on August 31, 2011

1. The Committee takes note of the views placed before it by the witnesses. The Committee appreciates that this Bill provides statutory backup to the Judicial Standards hitherto having sanction of the Restatement of Values as adopted in the Conference of Chief Justices in 1999. The Committee also appreciates that the Bill incorporates some new parameters essential to ensure judicial accountability. The Committee further observes that the Government should also consider the concerns of the witnesses raised before it. The Committee recommends that Government should remain alert and willing to update the judicial standards as and when required in future. [Para 12.2]

 2. In this context, the Committee feels that there is a need to bring such behaviour of judges within the purview of the judicial standards. The Committee feels that Clause 3(2)(f) should be expanded by specifically mentioning that judges should restrain themselves from making unwarranted comments against other constitutional/statutory bodies/institutions/ persons in open Court while hearing cases . [Para 12.5]

 3. The Committee also observed that the clause 3(2)b of the Bill provides that no judge shall have close association with individual members of the Bar. The Committee is of the view that the expression ‘close association’ is very vague in nature and it may invite varying interpretations. Accordingly, the Committee recommends that the said words may be replaced by the expression ‘close social interactions’ to avoid unwarranted ambiguity. [Para 12.6]

4. While deliberating upon the Bill, the Committee felt that that the proviso (i) of the clause 3(2)(f) needs to bring out more clearly and distinctly what is meant by the term “individual capacity” as the line of distinction between a judge’s official capacity and individual capacity is quite thin. Likewise, the Members were of the view that the expressions ‘private forum’ and ‘academic forum’ may be defined to bring more clarity in the meaning implied in these expressions. [Para 12.7]

 5. The Committee, recommends that the proviso (i) of the clause 3 (2)(f) may be re done so as to provide more clearly the implications of expressions like “individual capacity”, “private forum”, “academic forum” used therein. [Para 12.8]

 6. The Committee endorses that the Bill makes the declaration of assets a statutory responsibility for the judges. The Committee also acknowledges that the clause is in consonance with the people’s “right to know” and would facilitate greater transparency in judiciary. The Committee taking note of the suggestion that has come before it is of the view that the Government should include a mechanism to ensure that scrutiny of the declaration of assets is possible and implementable. Such a mechanism may involve any designated executive agency and can be made to report to either the Complaints Scrutiny Panel or the Oversight Committee. [Para 13.1]

7. The explanation of Department of Justice is not acceptable to the Committee. The Committee is of the opinion that Parliament’s responsibility as a deciding authority in the impeachment process does not prohibit it having a role in the National Judicial Oversight Committee which is the very first stage where the fate of a complaint against a judge is to be decided. Further, in its opinion, the screening level is as important as the final stage, when impeachment process commences. The Committee, accordingly, recommends amendment of clause 18 of the Bill so as to enable the Speaker of the Lok Sabha and the Chairman of the Rajya Sabha to nominate, respectively, one Member of Parliament from each House, having legal expertise and high standing in the legal arena to the Oversight Committee. [Para 14.5]

8. Having gone through the material placed before it, the views expressed by the experts and in-house discussion amongst the Members, the Committee strongly recommends for a broad based and independent National Judicial Oversight Committee. The Committee insists that all the three organs of the Government namely executive, judiciary and legislature have to be represented in that Committee. The Committee hopes that such a balanced body would ensure the independent and transparent functioning of the Committee and also brace people’s faith in redressal of complaints against the erring judges. The Committee, reiterates, that the expansion suggested by it in para 14.5 above should be read contextually into this paragraph also. [Para 15.3]

9. The Committee notes that under the present Bill, the complaint against a judge would be scrutinized by his colleagues only. Further, the CSP forms the pivot of the mechanism proposed in the Bill as it is only on the report on the CSP, the Oversight Committee will proceed or not proceed with the complaint. Also, the power to declare a complaint as frivolous or vexatious are vested in this panel. [Para 16.3]

 10. The Committee feels that it would not be prudent to reserve the membership of CSP only for member of the judiciary merely in name of preserving judicial independence. Rather the principal of judicial independence needs to be balanced with the ideal of judicial accountability. The Committee, therefore, recommends that the Government should include the non-judicial members in the CSP so as to enhance the credibility of such an important body in the eyes of the people. The Committee further recommends to Government to consider expansion of the CSP in the same manner as suggested by it in respect of the Oversight Committee in para 14.5 above. [Para 16.4]

 11. Further, Clause 11(2) of the Bill states that the Scrutiny panel in every High Court shall consist of a former Chief Justice of that High Court and two Judges of that High Court. The Committee feels that such a provision in the Bill undermines the aspect of impartiality in the inquiry process as allegations of corruption against a judge would be scrutinized by his/her own colleagues. The Committee is of the view that in place of two judges of that High Court, the CSP  should include judges from another High Court so as to ensure the element of impartiality in the inquiry process. The Committee therefore recommends that the expression “two judges of that High Court” should be replaced by “two judges of another High Court.” [Para 16.5]

 12. The Committee also takes note of Clauses 9 and 19 which provide for reference of a complaint by the Oversight Committee to the Complaint Scrutiny Panel. The Committee feels that both these clauses deal with a common situation and therefore it would be appropriate to review the relevance of Clause 9 in its existing format under chapter IV for the sake of better coherence. [Para 16.6]

 13. The Committee also noted that the Bill does not provide for in camera proceedings in investigation under CSP. The Committee feels that making such arrangements is necessary to protect the judge concerned from unwarranted defamation at this initial stage of investigation. In view of this, the Committee recommends that the word “in camera” should be added appropriately either in Clause 12 or 14 of the Bill to ensure the element of the confidentiality in the proceedings of the CSP. [Para 16.7]

 14. The Committee is unhappy in so for as the provisions of the Bill relating to the constitution and composition of the Investigation Committee are concerned. The Committee is constrained to note that the Bill provides no guidelines for the Oversight Committee in the matter of the constitution of the Investigation Committee. The Committee impresses upon the Government to indicate the constitution of the Investigation Committee in the Bill itself for the sake of objectivity and uniformity and to prevent uncertainty or the exercise of unnecessary discretion. [Para 17.2]

15. The Committee, while deliberating upon the Bill, felt that the scope of this clause should be widened to ensure the accountability of the media in relation to the divulgence of the information while complaints are under investigation. The Committee apprehends that besides the persons mentioned in the clause, media may also be a source of the divulgence of information at various stages of investigation/inquiry. The Committee, therefore, recommends that an explanation may be added suitably to ensure that the prohibition prescribed applies to the Media also. [Para 17.4]

 16. The Committee endorses the rationale of making a provision for punishment for making frivolous or vexatious complaints. The Committee, however, expresses its reservation over the prescribed quantum of punishment both in terms of imprisonment which is up to 5 years and fine which is up to 5 lakh rupees. The severe punishment prescribed in the Bill may deter the prospective complainants from coming forward and defeat the very rationale of the Bill. In view of this, the Committee recommends that Government should substantially dilute the quantum of the punishment so as not to discourage people from taking initiatives against the misbehaviour of a judge. In any case it should not exceed the punishment provided under the Contempt of Court Act. The Government may also consider specifically providing in the Bill a proviso to protect those complainants from punishment/penalty who for some genuine reasons fail to prove their complaints. The Committee, accordingly, recommends that the Bill should specifically provide for protection in case of complaints made ‘in good faith’ in line with the defence of good faith available under the Indian Penal Code. [Para 18.8]

17. Clause 56 of the Bill provides that appeal from a person convicted on a trial held under the clause 53(1) shall be directly to the Supreme Court. The Committee while discussing this clause felt that the existing provisions of the Bill were curtailing the right of challenge of the complainant to one only. The Committee feels that the complainant’s normal right of judicial review on jurisdictional grounds both under article 226 of the Indian Constitution and under the apex Court judgement in Chandra Kumar vs Union of India and others is not intended to be circumscribed or eliminated, as indeed it cannot be by a mere Act of Parliament. Hence, while maintaining appellate recourse to the apex Court as already provided, a small Explanations may suitably clarify the availability of judicial review on jurisdictional grounds apart from the apex Court appeal. [Para 18.9]

18. As far as the present Bill is concerned, the Committee feels that the Bill deserves appreciation for prescribing an elaborate procedure for investigating into individual complaint for misbehavior or incapacity of judges. It also deserves appreciation as it empowers the common man to expose the misbehavior of judges. It is clearly an initiative in the right direction and endeavours to strike a reasonable balance between the demands of accountability and of judicial independence. [Para 20]

19. However, the Committee finds some serious shortcomings in the mechanism proposed in the Bill as pointed out in foregoing paras.Such shortcomings need to be rectified in order to enhance the efficacy of the Bill and to realize the right to know. [Para 21]

 20. The Committee was also of the considered and unanimous opinion that for the various bodies created under this Bill, the Government will see that its appointees are as broad based as possible, including in particular appointment of SC/ST/OBC/minority sections and other weaker sections as feasible.[Para 22]

 21. The Committee also unequivocally feels that the present Bill deals only partially with the problem and the main systematic lacunae remain unaddressed. The most significant lacuna relates to the present method of appointment of judges in the higher judiciary. The Committee is of the considered opinion that the present Bill is bound to end up with limited success because of the piecemeal nature of the proposed legislation, despite the genuineness of its objectives. The issue of judges’ appointment, therefore, needs to be addressed comprehensively, though separately, at the earliest because without it the efficacy of this Bill is seriously impaired. [Para 23]

 22. The Committee is of the view that the Government has to move beyond an incremental approach and give urgent and due thought to a holistic legislation encompassing the appointment process and other related matters to ensure judicial accountability for improved administration of justice. [Para 24]

JUDICIAL ACCOUNTABILITY BILL

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