House power to regulate judges’ ambit under legal experts’ lens

Supreme Court of India


An attempt by Parliament to restrain judges from speaking against constitutional and statutory authorities in open court has provoked legal experts to question the legislature’s power to frame such a law.

Former judges and legal luminaries feel that the proposed move by a Parliamentary Standing Committee will violate the Constitution itself that bars Parliamentarians from deciding standards on judicial conduct, much less to even discuss about it. According to Article 121 in the Constitution, “No discussion shall take place in Parliament with respect to the conduct of any judge of the Supreme Court or of a High Court in the discharge of his duties.” Such power is available only at the time when the Parliament discusses a motion for removal of a judge as in the present case of Justice Soumitra Sen. Similar restriction applies to state legislatures under Article 211.

A similar bar prevails on Courts to inquire into proceedings inside the Parliament. It was a result of this bar, a five-judge bench of Supreme Court in 1998 granted exemption to the MPs involved in the JMM bribery case by considering the act of voting in Parliament to be part of proceedings in the House. In 2007, the question came up again in the cash-for-query case where the SC clarified that “irregularity of procedure” followed by Parliament cannot be questioned by Courts, except on the question of illegality or unconstitutionality of the action in question.

Former Chief Justice of India Justice VN Khare said, “There is a Code of Conduct for judges restraining them from speaking out their emotions or personal views in open court. It is not possible to regulate judges’ conduct by the legislature.” This is contained in the Full Court Resolution of May 7, 1997 titled Restatement of Judicial Values.

The report of the Parliamentary panel, while discussing the broad contours of the Judicial Standards and Accountability Bill 2010, said, “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) of the Bill should be expanded by specifically mentioning that judges should restrain themselves from making unwarranted comments against other constitutional or statutory bodies/institutions in open court while hearing cases.”

Clause 3(2)(f) of the Bill states: “a judge shall not enter into public debate or express his views in public on political matters or on matters which are pending or are likely to arise for judicial determination by him.” This is reproduction of the 1997 Resolution. Another former Chief Justice of India Justice JS Verma felt that there should be no fetters on judges making “fair comment”. Not talking in the context of the Parliamentary panel’s report alone, he said, “In a democracy everyone has a right to voice opinion. I do not know why there should be objection to any fair comment.” Again the use of the word “unwarranted” by the Parliamentary panel has a broad sweep which could be dangerous.

As a test, the former CJI suggested, “the judge must decide am I saying something that will help decide the merits of a case. Anything outside it should best be avoided.” He further said that judges in their judgments do pass observations that have no binding effect. “Every observation or comment is not to be seriously taken. The restraint in this regard should also be of the media against highlighting every such comment.”

Agreeing to the fact that of late some comments by judges was unfortunate and out of context, Justice Khare suggested that the way out is not the legislature setting terms for the judiciary. “Our sentiments cannot be regulated by legislation. There are times when the comments are made by judges in a lighter vein having no binding force. At best the restraint must be voluntary or any legislation may delegate this power to Chief Justice of India to regulate judges’ conduct.” To this view, senior advocate Jayant Bhushan added, “Hearing of a case involved arriving at a decision which involves debating and expressing tentative views. Such observations cannot be shut out as it amounts to gagging the judges.”


Will politicians understand hunger by experimenting with fast?


Anna Hazare’s success reminded the political class about the magnetic effect a fast has on the common man, who suffers hunger on a daily basis and is hungry for good governance that could ensure some sort of social and economic equality in his poverty stricken and discrimination filled life.

 Two politicians in Gujarat have gone on fast. If Narendra Modi is using the communal harmony-coated fast for a boisterous projection of US-certified development in the state to exorcise the ghost of post-Godhra riots, then Shankersinh Vaghela is fasting to scratch the still fresh wounds to widen the chasm between communities for electoral gains.

 But no politician seems inclined to go on fast for the 40 crore Indians who even after 64 years of independence live below the poverty line. Recently, for the benefit of the Supreme Court, the Planning Commission said a person is below the poverty line if he is unable to buy food worth Rs 20 a day at a time when almost every essential commodity is out of his reach.

And if he did not live below the poverty line, that is if he is able to spend Rs 21 a day on himself and his family, then he would have to buy ration from the market as he would be disentitled to get it from PDS shops.

Faced with an absurd definition of poverty, fast has become a common man’s constant companion. Political inaction to streamline supply of subsidised foodgrain to the poor forced Supreme Court to intervene decisively. When Justices Dalveer Bhandari and Deepak Verma said “not a single person should die of starvation”, it would have sounded like a poll-eve political slogan had it not been accompanied by stern directions for distribution of additional grains in 150 poorest districts.

It is the faceless common man — farmer, cobbler, iron-smith, washerman, landless labourer, daily wager, painter, plumber, sewage worker, sweeper — who sustains the wheels of the economy, yet faces the brunt of the economic policies of the government.

Would politicians take turns to live for a few days in the households of the poor and try to understand the hunger, anger and anguish that is stripping the common man of the right to live with dignity? Have they tried to understand the root cause behind the suicide of over 1.40 lakh farmers who left behind tales of debt, poverty and sorrow? Is waiver of loans the answer?

Poverty and hunger have drawn the Supreme Court’s attention periodically. In People’s Union for Democratic Rights vs Union of India [1982 SCC (3) 235], it said utter, grinding poverty had broken the backs and sapped the moral fibre of a majority of the population. “They have no faith in the existing social and economic system. What civil and political rights are these poor and deprived sections of humanity going to enforce,” it had asked.

Three years later, in the case K C Vasantha Kumar vs Karnataka, the SC said, “Chronic poverty is the bane of Indian society. Market economy and money spinning culture has transformed the general behaviour of society towards its members. Bank balance, property holdings and money power determine the social status of the individual and guarantee the opportunities to rise to the top echelon. How the wealth is acquired has lost significance. Purity in means disappeared with Mahatma Gandhi and we have reached a stage where ends determine the means.”

Even when poverty still ruled society, the apex court in the year 2000 in Islamic Academy case said right to development was also part of human rights. “Economic prosperity or elimination of poverty is not the only goal to be achieved but along with it allow individuals to lead a life with dignity with a view to (make them) participate in the governmental process, so as to enable them to preserve their identity and culture,” it said.

 Sadly, we are very far from eradicating poverty, which was the poll slogan of the Congress party in the 1970s. Politicians still do not understand that hunger and poverty afflict the soul of a person and drive him to do things which are strange to his social and moral DNA.

Fasting may have brought Hazare support for a campaign against corruption. But fasting surely will not get politicians the votes. What voters need is development in the true sense and this alone can ensure prosperity and help eradicate poverty.