LAW RESOURCE INDIA

The current accountability deficit

Posted in CONSTITUTION, DEMOCRACY, JUDICIAL REFORMS, JUDICIARY, JUSTICE by NNLRJ INDIA on August 17, 2014

heBY RAJU RAMACHANDRAN IN THE INDIAN EXPRESS

Debates on the collegium system generally start at the wrong place, namely, whether a national judicial commission will be a better alternative. The point at which they ought to start is whether the creation of such a system is constitutionally permissible. Article 124 of the Constitution states that every judge of the Supreme Court shall be appointed by the president in consultation with such of the judges of the Supreme Court, and of the high courts in the states, as the president may deem necessary. It also says that in the case of appointment of a judge other than the chief justice, the chief justice of India (CJI) shall always be consulted.

In the name of the independence of the judiciary, the Supreme Court said in 1993 that primacy in the matter of judicial appointments must lie in the final opinion of the CJI, “unless for very good reasons known to the executive and disclosed to the chief justice of India, that appointment is not considered to be suitable”. To mitigate the violence done to the

plain language of the Constitution and to reassure every one that power did not rest in one individual alone, that is, the CJI, the court created a new constitutional institution, a collegium of the senior-most judges.

This was not a creative interpretation of the Constitution, as the apologists for the collegium system would have us believe, but a plain rewrite. This was judicial overreach and it was only last year, 20 years later, that serious attempts began to repair the damage to the Constitution.

Having stated my fundamental objection, I will recapitulate my three other objections. First, there must be an element of democratic accountability in the matter of appointments to the higher judiciary, which has the power to strike down laws of Parliament and state legislatures, and even amendments to the Constitution. Second, when judges appoint judges, they look mainly at “technical competence” and seniority. They do not necessarily look at the social philosophies or gender sensitivities of prospective candidates. Third, judges do not pay particular attention to the idea of manpower planning, as is clear from the many short-term appointments of chief justices and short-term appointments to the Supreme Court. In a judge-dominated system, everyone needs to be given a “chance”.

And so, it is about time that we put a better system in place. There is no going back now to the original system of the executive appointing judges in consultation with the judiciary, by invoking the doctrine of “original intent”. Much has changed in the world since we enacted the Constitution. Processes of judicial appointments are far more participatory all over the world. Stakeholders in the justice delivery system are now accorded an important role. Let us look at just two examples.

In Canada, the advisory committee for judicial appointments includes a member of parliament from each recognised party, a retired judge, a nominee of the attorney general, a nominee of the law societies and two prominent Canadians who are neither lawyers nor judges. In South Africa, the Judicial Service Commission includes judges, the minister for justice or his nominee, advocates and solicitors nominated by their respective professional bodies, a professor of law, senators and four nominees of the president of whom two shall be advocates or solicitors.

The judicial appointments commission (JAC) needs to be written into the Constitution itself, not only in terms of its creation but also its composition. It is necessary to make this point because the previous government had originally sought to bring the commission into the Constitution, but left it to Parliament to make an ordinary law to prescribe its membership. This was undesirable. Successive governments would have been free to change its composition according to their will.

Should the JAC be a part-time body? The Union Public Service Commission is not part-time. Surely, appointments to the superior judiciary are not less serious a matter than civil service appointments. But the present collegium, by its very nature, can only meet in the evenings after the judges have finished their arduous courtroom work, and before they start writing their judgments and reading for their cases the next day. To make appointments to the Supreme Court and all the high courts in the country, we need a full-time institution with a permanent secretariat and its own information- gathering wing. And so, the judicial members would have to be former and not sitting judges. Similarly, jurists and eminent citizens will need to be full-time members. The only possible part-time ex officio member could be the law minister.

The national judicial commission will need to devise new methods for attracting talent to the judiciary. The old practice of “asking” and “inviting” must be supplemented by calling for applications from interested candidates (currently, you can apply to become a district judge, but it is bad form to apply to be a high court judge!). Search committees will have to look for the best legal talent, not only from within the court system but also outside. In the current system, non-litigating lawyers don’t ever get considered.

And the question of the “tilting balance” remains. Former judges (most recently, Justice A.P. Shah) take the view that the independence of the judiciary can only be secu red by judges outnumbering the others. I, however, believe that democratic accountability in the process of appointment is equally important and, in principle, judges should be marginally outnumbered.

Finally, since it looks as if we are getting down to business, we need to attend to the removal process as well; it is part of the same Article 124 that is going to be amended. Impeachment involves getting signatures from MPs. On the one hand, it makes it difficult for even genuine complaints to proceed further. On the other hand, it politicises the process. One impeachment failed because the then ruling party abstained from voting, and two others were aborted by midstream resignations (civil servants are not allowed to resign in the middle of disciplinary inquiries; can judges be allowed to do so?). The proposed national judicial commission must therefore be in charge of the removal of judges as well.

The writer is a senior lawyer in the Supreme Court

In defence of the collegium

Posted in CONSTITUTION, DEMOCRACY, JUDICIAL REFORMS, JUDICIARY, JUSTICE by NNLRJ INDIA on August 17, 2014

kt-medBY KT THOMAS PUBLISHED IN THE INDIAN EXPRESS

The appointment of judges at the level of the high courts and Supreme Court continues to be problematic, in spite of cosmetic changes brought in through judicial activism in two stages. What remains is known as the collegium system. It was formulated by a nine-judge bench of the Supreme Court after hearing long arguments addressed by top-ranking counsel. Initially, the collegium system was generally welcomed, despite opposition from politicians on the ground that the judges had arrogated to themselves the power of choosing judges. But in due course, it received criticism from different quarters, including members of the Bar. It is true that the collegium system has remained in force for more than  15 years. As the years have passed, burgeoning criticism that the present system did not remedy the drawbacks of the erstwhile mechanism have eventually become more strident.

At least in a few instances, unsuitable persons have found their way to seats of judges in the high courts. It is, of course, a matter of relief that the number of such persons has not swelled to alarming proportions. At the same time, it would not be true to say that no unsuitable person has reached the Supreme Court bench through the collegium system. The lesson to learn is that however much improvement is sought to be achieved through changes to the appointments process, the efficacy of its working depends on the vision and dedication of the persons empowered  to manage the system.

The chairman of the Law Commission of India has suggested that a seven-member judicial appointments commission (JAC), with a preponderance of members from the judiciary, be instituted. But of what use are the proposed changes if some members of the JAC function in the same manner as before? What is the guarantee that only persons of impeccable and proven integrity, coupled with the moral strength to assert their dissent (if any) on record, would fill up the JAC? Having been a member of the collegium of the Supreme Court,  I know how outsiders seek (and get) access so as to canvass for the decision-making process. I doubt that the situation would change if the proposed composition of the JAC were to be implemented. I am also not prepared to say  that the selection of “eminent persons” would not become diluted in due course, particularly because of the vagueness  in standardising who these “eminent persons” can be. I am sceptical of the outcome of the JAC in the long run, given that the scope for manipulation and favouritism cannot be fully eliminated even within it.

A former chief justice of the Kerala High Court had evolved an experiment while adhering to the collegium mechanism. When there were three vacancies of Bar candidates, he invited recommendations from all his companion judges in the high court, requesting them to send at least five names each. He got 40 names altogether, and shortlisted them to 10. He studied their performance and presented his views before the other members of the collegium of the high court. When there was dissent, he expanded the three-member collegium and obtained their views also. He made the final recommendation to the Supreme Court. In that process, the Kerala High Court gained three very fine judges. I thought that the same could be followed by the chief justices of other high courts and, in fact, I wrote an article in support of it. But on deeper thought, I sensed that if the practice continued and remained in place for much longer, the scope for canvassing with other judges for interested persons would have increased greatly and the experiment would have been rendered ineffective.

The criticism that the executive has now no role in the appointment of judges is, to a great extent, misplaced. In my view, there should not be any dispute on the proposition that judges should have the first-stage opportunity to point out who the best candidates for judgeship are. But their judgements on that score cannot be treated as infallible. When names of candidates are sent by the collegium to the executive, it is definitely possible for the executive to conduct a thorough inquiry through such departmental agencies as they could trust. Then the executive can send back the names to the collegium for further consideration and a final decision. One change I wish to propose is to permit the executive to propose names to the collegium at the initial stage.

Whenever recommendations are to be made for more than two vacancies (it may go up to 15 and sometimes even to 20), there could be a temptation for members of the collegium to compromise in order to accommodate candidates on barter considerations. Whenever bulk recommendations have occurred in the past, some not-so-suitable (if not totally unsuitable) candidates have succeeded in getting access to the list. This defect can be effectively eliminated by restricting recommendations strictly to one or two vacancies at a time, and definitely no more. In my view, the existing system  can continue with the modifications indicated above.

The writer is a former judge  of the Supreme Court

Politically coloured, legally suspect

Posted in CONSTITUTION, DEMOCRACY, JUDICIAL REFORMS, JUDICIARY, JUSTICE by NNLRJ INDIA on August 17, 2014

colBy: J.L. Gupta PUBLISHED IN THE INDIAN EXPRESS

The clamour against the courts has been continuous. Initially, there was talk of a “committed” judiciary. Then, of judicial accountability and transparency. And so on. The latest is — why should judges choose judges? Hence, the effort to replace the collegium by a Judicial Appointments Commission (JAC). The bill has already been passed in both Houses of Parliament. Is it the right way to do so? I think, No.

Let us see what is happening in the country. Who selects ministers? The prime minister and chief ministers. Who selects the generals? The generals. Who selects army commanders? The army. Who selects government servants? The government.

Why then do we want a different method of selection for the judiciary? Why should the judiciary not be allowed to select judges? Is it an effort to destroy the one institution that has performed and exposed scams and scandals like Coalgate and 2G?

The founding fathers created a judicial pyramid. The subordinate courts were the base. Then came district courts. The high courts followed at the state level. The Supreme Court was placed at the apex. They also laid down the procedure for the selection and appointment of judges. The selection and appointments of the officers in the subordinate and district courts are made in accordance with the rules framed and promulgated by the government in accordance with the Constitution. The “control” vests in the high court. In so far as appointments to the higher judiciary are concerned,

the matter was considered by the Supreme Court in the second and third judges’ cases.

The court’s dictum has been followed. Judges to the high courts and Supreme Court have been selected by collegiums for some time now. The scope for interference by the political executive has been reduced to a minimum. Consequently, criticism from different quarters is understandable. But can the JAC improve the quality of judges?

No system of selection can be absolutely perfect. Institutions run by human beings will reflect human frailties. A fact that deserves mention is that the Constitution itself provides for Union and state public service commissions to make selections to the various services. The commissions have been in place for a long time. Has their performance been beyond reproach or even satisfactory? Have these commissions not been described as “personal” service commissions? The kind of eminent persons proposed to be included in the JAC are usually members of the state and Union public service commissions too. Yet, what do we have? Petitions in courts alleging all kinds of malpractices. Still more, states have moved petitions, prosecuted members or chairpersons of the commissions for different irregularities and even offences. Would a similar commission for judicial appointments change everything for the better? Looks unlikely.

Second, the state is the single-largest litigant in the country. Should a litigant have any say whatsoever in the choice of judges?

Third, in a democracy, independence of the judiciary is of paramount importance. A fearless and independent judiciary is a basic feature of the Constitution of India. It is a part of the “basic structure” and should not be sacrificed at the altar of the executive’s anxiety or ego. Legally speaking, the validity of the proposed bill is extremely doubtful.

The members of the collegium also monitor the performance of judges and lawyers who have to be considered for appointment to the high courts or the Supreme Court. They examine judgments of the persons who are considered for elevation. So far as the JAC is concerned, the majority shall not have that opportunity. They will necessarily have to depend upon hearsay evidence. This will be totally improper.

It is alleged that the collegium does not have a mechanism to “verify the character and antecedents of judges.” I think, it is not so. The court and/ or the chief justice can always ask the concerned agencies to do the needful. In certain cases, it has been actually done. I think the fear is wholly unfounded.

It has been suggested that judges sometimes indulge in mutual give-and-take. As a result, some people who should not have become judges at all have been elevated to still higher positions and courts, it is argued. Assuming this to be correct, can anybody claim we are totally impervious to all kinds of political and social influences or pressures? Has it never happened that, at the highest level, files are held up till the name of a particular person is cleared by the collegium?

But is the JAC the solution? No!

A rare exception under the collegium system has the potential of becoming the rule when the final word is left to the executive. Are the series of scams and scandals that have taken place recently in India not enough to caution us about the state of political morality? The judiciary is one institution in India that has performed and delivered. We can tinker with it only at our own peril.

The writer is former chief justice,

Kerala High Court

Needed: Dialogue, statesmanship

Posted in DEMOCRACY, FUNDAMENTAL RIGHTS, JUDICIAL REFORMS, JUDICIARY, JUSTICE by NNLRJ INDIA on August 9, 2014

judiciaryBY FALI S NARIMAN PUBLISHED IN THE INDIAN EXPRESS

Because we cannot risk another judicial decision on appointments, writes FALI S. NARIMAN.

In the Constitution of India, 1950, the appointing authority for judges in the higher judiciary is the government of India, acting in the name of the president of India. Judges of the Supreme Court are appointed after consultation with the chief justice of India (CJI) and other judges of the Supreme Court (or high courts) as the appointing authority deems necessary for the purpose; judges of high courts are appointed after consultation with the CJI, the governor of the concerned state and the chief justice of the concerned high court. This simply worded prescription — expressed in Articles 124(2) and 217(1) — worked well in practice for the first two decades. By convention, whosoever the CJI recommended as judge was, almost invariably, appointed; whom the CJI did not recommend was not appointed.

But in 1981, in the S.P. Gupta case, much later known as the “first judge’s case”, a bench of seven judges of the Supreme Court presided over by Justice P.N. Bhagwati held (4:3) that the recommendations of the CJI for judges to be appointed in the higher judiciary were, constitutionally, not binding on the government of India. The (Congress) government, then in office, was delighted. It was now payback time. So when Bhagwati assumed office as CJI, the Congress government, still in office, declined to appoint judges recommended by him, since it was he who had judicially declared (in the S.P. Gupta case) that “consultation” in Article 124 did not mean “concurrence”.

It was much later, with the accumulated experience of the deleterious consequences flowing from the majority judgment in the first judges case, that new faces on the bench decided to take a “fresh look” at Article 124(2). In what has now become known as the “second judges case” (1993), a bench of nine judges held (by a majority, 7:2) that a collegiate opinion of a collectivity of judges was to be preferred to the opinion of the CJI. It also said that if the government did not accept the “recommendation” of the “collegium” (then consisting of the three senior-most judges), it would be presumed that the government had not acted bona fide.

Even after the judgment in the second judges case, recommendations made by the collegium were not made in the spirit in which the new doctrine had been propounded, since the collegiate of the three highest constitutional functionaries (the senior-most judges of the court) could not see eye to eye in the matter of appointment of judges to the higher judiciary. So when (again, by convention) the then senior-most judge, Justice M.M. Punchhi, became the CJI in January 1998 and recommended, with the concurrence of his two senior-most colleagues, that a particular list of five named persons be appointed to fill the vacancies in the highest court (all strictly in accordance with the methodology laid down in the second judges case), the government took exception to some of the names — justifiably, according to disinterested and knowledgeable persons.

But the CJI was adamant. When the government said that some of the names suggested could be accepted, but not all, the CJI said: “It will be all or none.” Apprehending the initiation of contempt proceedings, the government of the day (the NDA government with the BJP in the driving seat) thought it expedient to seek a presidential reference under Article 143 of the Constitution for the advisory opinion of the Supreme Court on certain dicta expressed in the second judges case.

All that ultimately happened after the presidential reference was that the collegiate was enlarged (by judicial diktat) from three to five of the senior-most justices, perhaps on the principle that there was greater safety in larger numbers. Meanwhile, Chief Justice Punchhi demitted office since he had reached the constitutional age of retirement. His successor, along with the four senior-most justices in the collegium, recommended names of appointees, which were accepted. This shows (it is said) that the collegium system worked. The response of lawyers has been, “Yes, but not always in this manner.”

The truth is that the system of recommendation for judicial appointments by a collegium of the five senior-most judges (like that of the three that went before) is not institutionalised: no mechanism is prescribed (by the collegium itself), no office is set up, no data gathered in advance, no criteria evolved as to who among the high court judges — all aspirants to a place in the Supreme Court — should be recommended. There is no reason given as to why a broad consensus among all the justices of the Supreme Court is not to be preferred to the views only of the five senior-most.

The entire system operates ad hoc, based on no principle. And the choice of judges to be recommended has varied in quality with the collegium’s fast-changing composition. The system has failed, according to me and many others. But in the opinion of the judges, including a succession of chief justices of India, it has not. More importantly, the BJP government that is now in office had, as part of the NDA government in 1998, categorically informed the nine-judge bench hearing the presidential reference that it was not seeking a review of the judgment in the second judges case — the judgment that first initiated the novel idea of a “collegium” of senior-most judges.

In this situation, what would be the right thing to do? I believe that before embarking on the new experiment of a broad-based National Judicial Commission, even one loaded with a majority of sitting judges as members, it is imperative that there should be meaningful dialogue between the executive and the collectivity of all the judges of the Supreme Court (represented by its chief justice), so that a mutually acceptable solution can be found. It must be found. Statesmanship is the need of the hour, because we cannot risk another judicial decision. The executive, the judges and the lawyers must resolve to avoid, at all cost, a fourth judges case.

The writer is a constitutional jurist and senior advocate to the Supreme Court

A case for two commissions

Posted in DEMOCRACY, JUDICIAL REFORMS, JUDICIARY, JUSTICE by NNLRJ INDIA on August 9, 2014

carBY T R ANDHYARUJINA PUBLISHED IN THE INDIAN EXPRESS

There is now a consensus amongst judges, lawyers and legislators that the present system of appointment of judges to superior courts by a collegium of Supreme Court judges requires to be changed for a better one. There are sound reasons for this move.

First, the appointment of judges by the Supreme Court collegium has no foundation in our Constitution. Article 124 of the Constitution provides that every judge of the Supreme Court is to be appointed by the president after consultation with the chief justice of the Supreme Court and other judges of the Supreme Court and high courts. Similar power is given by Article 217 to the president in consultation with the chief justice of India (CJI), the governor of the state and chief justice of the high court for the appointment of judges to high courts.

In 1981, in what is known as the first judges’ case, the Supreme Court held that the power of appointment of judges of the superior courts resided solely and exclusively in the president, that is, the Central government, subject to full and effective consultation with the constitutional functionaries referred to in Articles 124 and 217. However, in 1992, the Supreme Court, in the second judges’ case, professing to safeguard the independence of the judiciary, reversed the first verdict and rewrote the constitutional provisions to hold that the primacy in the appointment of a judge of the Supreme Court was with the CJI, who would make his recommendation to the president after consultation with two of his senior judges. The president would only have the limited power of expressing his doubts on the recommendation of the CJI. The president’s doubts would not however prevail if the CJI reiterated his recommendation on the appointment of the judge. In a later judgment, known as the third judges’ case, the Supreme Court diluted the primacy of the CJI, and gave the power of appointment to a collegium of the CJI and four of his senior-most colleagues.

The judgments in the second and third judges’ cases are an extraordinary tour de force in the name of securing the independence of the judiciary. The court has rewritten the provisions of the Constitution for the appointment of judges. The executive’s function in the appointment process has for all practical purposes been eliminated and reduced to the formal approving of a recommendation made by the CJI and his collegium. “Consultation” with the CJI in the Constitution has been transmuted into an original power to appoint by the CJI and a collegium. The Constituent Assembly’s view at the time of enacting the constitutional provisions, that the CJI should not be the final appointing authority, was disregarded by the court. In no jurisdiction in the world do judges appoint judges.

Even if the collegium’s method for the appointment of judges has no foundation in the Constitution, it could have been excused had the system worked satisfactorily, but unfortunately, for over 20 years, it has not. In the first instance, the collegium system lacks transparency and is secretive. The public is not aware of the selection of a judge until his name is forwarded to the government by the collegium. Second, there have been instances of judges being selected or not selected due to favouritism or prejudice of members of the collegium. Third, selection on competitive merit of the appointees is discarded and judges are generally appointed to the Supreme Court on their seniority in ranking in the high courts. The late Justice J.S. Verma, principal author of the second judges’ judgment, later admitted that the collegium system had failed.

Should the earlier system of the exective appointing judges after proper consultation be restored? Paradoxically, from 1950 to 1973, some of the most outstanding judges of our Supreme Court were appointed through this system. Eminent judges like Michael Kirby of the Australian High Court are strongly in favour of restoring the old system, with control over it by Parliament. It was only during the period of the Emergency that this system was subverted, which led to the judiciary appropriating the power in the second judges’ case. Even today, in Australia and Canada, it is the executive that appoints judges after proper consultation.

To introduce a Judicial Appointments Commission (JAC) in India is a fundamental change in the Constitution. Such a change requires careful consideration and evaluation of the system. It is important to know that, except for the judicial appointment commission of the UK introduced by the Constitutional Reform Act, 2005, such commissions have not been successful elsewhere. The South African constitution provides for a judicial appointment commission, but its working is far from satisfactory and at times appointments have been influenced by the government. The same is true of judicial appointment commissions in other states in Africa.

If the JAC is to be introduced in India, its composition should be made part of the Constitution itself and not left to ordinary legislation by Parliament. There should be proper representation of members, including of the legal profession, in the JAC. The JAC will be over-stressed and overworked if it has to make appointments for 31 judges to the Supreme Court and over 800 judges to the 24 high courts. The CJI and two senior-most judges, who are to be part of the commission, would have to work in the commission to the neglect of their primary judicial duties of hearing and deciding cases. There ought to be two separate judicial commissions, therefore, one for the Supreme Court and the other for the high courts. The JAC for high courts ought to

be composed of retired judges of the Supreme Court or high courts, in addition to other members. In the UK, there are separate selecting bodies for high court and for supreme court. The overriding factor will be the merit of the candidate, but the commission, as in the UK, should consider diversity, namely, appointment of women judges and judges of various regions without of course sacrificing merit.

Overall, the creation of a JAC requires careful consideration and extensive consultation with all sections of the public, including the CJI. The present law minister, Ravi Shankar Prasad, rightly convened a meeting on July 28 of judges and lawyers and jurists to discuss the changes to be made. It is to be hoped that such consultations will be continued before a legislation is introduced. The collegium system has not worked, but we should not have a situation where we jump from the frying pan of the collegium to the burning fire of a chaotic National Judicial Commission.

The writer is a senior advocate of the Supreme Court and former Solicitor General of India

First, insulate the judge from politics

Posted in DEMOCRACY, JUDICIAL ACTIVISM, JUDICIAL REFORMS, JUDICIARY, JUSTICE by NNLRJ INDIA on August 9, 2014

BY RAMJETHMALANI PUBLISHED IN THE INDIAN EXPRESSjudge

The thesis of ‘committed’ judiciary has been abandoned, but its practice continues unabated. That is the real problem, writes RAM JETHMALANI.

A judge is the guardian of the small man and his bundle of rights, which enable him to realise his fullest material, moral and spiritual potential, and expand to the utmost frontiers of his body, mind and soul. No judge must aspire to harmony with the legislature and executive. Every judge must brace himself for a life of tension with both in the intelligent and stout defence of his ward, who needs constant protection against the insolence of unfeeling officials, the venality of politicians and the misdeeds of wicked neighbours and fellow citizens. Every court is essentially a court of wards; the Supreme Court has the entire citizenry as its ward. Our judges need not be sensitive to the oft-mounted attack that they are not elected and are, therefore, unaccountable and undemocratic.

This role of the judge makes one think about elected judges. But the system of elected judges has been tried elsewhere and I believe that it has produced jokes. The most instructive joke that you will find is that in a certain US state, the Democratic Party found a judge paralysed from the waist downwards and invariably, in elections, he won the sympathy vote. He triumphed in four successive elections but before the fifth, a Republican Party official said to his superior, “Sir, we have found a solution to our problem.” He asked, “What is it?” The answer: “Sir, this time we have found a judge who is paralysed from the waist upwards.” It will not work in India anyway.

Economics may have dominated the world most of the time and probably does dominate in some sense even now. But today, politics has overtaken economics in its influence. In the past few decades, all institutions, including the judiciary and of course the Bar, have struggled with the temptations of politics. Judges, like other mortals, are attracted to politics, particularly aspiring ones who consider favours from a ruling party to be stepping stones for upward mobility in the field. Usually, but not always, judges do often violate their oath of administering justice without fear or favour. Favours done have to be returned, feel some. We have therefore to evolve an effective mechanism of insulating judges against politics and involvement in political machinations of the kind that have disgraced some sections in the past not only in this country, but also elsewhere.
Politicians as a class and the executive in power must therefore have no voice in the appointment of judges. The executive is the biggest litigant in cases of citizen complaints of the oft-corrupt misuse of executive powers. Even a good judge appointed by a corrupt minister will not command public confidence. The second judges case, the origin of the present collegium system, was a correct decision, and the current system is vastly superior to the one it supplemented. It was the one that produced the tellingly sarcastic comment, “It has created two kinds of judges — those who know the law and those who know the law minister.”

South Africa, in its new constitution, adopted the model of a judicial commission as the method of selection, which has been operational since 1996. The law minister is formally consulted and he makes his comments upon the appointees or recommendees of the judiciary. The comments of the law minister are considered with respect and attention, but the final word lies with the commission. I am committed to this mechanism as our final solution. I must hasten to explain why.

I agree with the weighty opinion of my erudite friend, senior counsel Anil Divan, in his recent article in The Hindu: “The present secretive process followed by the collegium excludes public scrutiny, violates the citizen’s right to know and leads to diminishing respect for the judiciary.” Some bad appointments produced by this system are also notorious.
While corruption continues to grow like a galloping cancer in every branch of life, the judges seem to reciprocate by producing a strange jurisprudence that only protects the corrupt. The law of contempt and the difficulties of proving judicial corruption deter cautious lawyers. But the common man, not so inhibited, produces an impressive volume of popular corruption folklore.

The real decline of judicial character started in 1973. Mohan Kumaramangalam, a distinguished lawyer and politician, claimed that judicial appointments could not be made without reference to the social philosophy of the judges. The judge, being an important decision-maker, makes decisions that are bound to affect the lives of the people, and his decisions are influenced by his social philosophy. Therefore, independent India should have judges who are “committed” not only to the social philosophy of the Constitution, but also to that of the government. This was controversial. However, Indira Gandhi’s government implemented his views during the Emergency.

Though the Kumaramangalam thesis has now been abandoned, its practice continues unabated. While judges associated with the ruling establishment are invariably appointed, those having any form of association with opposition parties are scrupulously avoided. How successive chief justices, who are supposed to be totally judicial even in the discharge of their administrative function, habitually enter into convenient compromises escapes comprehension. The inevitable answer is the creation of a national judicial commission in which the judiciary, government, opposition, the Bar and academic community have an equal voice. Judges should hold office only during the pleasure of the commission. It should have the power to appoint, transfer and dismiss — of course, in accordance with procedure established by law, or what is also known as due process. The Lokpal may well be a useful addition to the list of participants.

The 79th report of the Law Commission suggested ways to plug loopholes in the existing system of appointment of Supreme Court judges. No one should be appointed a judge of the Supreme Court unless, for a period of not less than seven years, he has snapped all affiliations with political parties and unless, during the preceding seven years, he has distinguished himself for his independence, dispassionate approach and freedom from political prejudice.

The practising Bar is the constituency of a judge. If he cannot retain its confidence, he must gracefully quit office. It is just not true that only weak and obliging judges are popular with the Bar. Members of the Bar know the black sheep on the bench. No wonder, the American Bar Association can, by its adverse criticism, make the mighty president of the US withdraw his nominees for judicial office. A lord chancellor of England admitted that if he made an unworthy appointment, he could not possibly look into the eyes of the lawyers at Bar dinners.

The writer, a lawyer and Rajya Sabha MP from Rajasthan, is a former Union law minister (June 1999-July 2000)

Change must respect basic structure

Posted in DEMOCRACY, FUNDAMENTAL RIGHTS, JUDICIAL REFORMS, JUDICIARY, JUSTICE by NNLRJ INDIA on August 9, 2014

Upendra BaxiBY UPENDRA BAXI PUBLISHED IN THE  INDIAN EXPRESS

The relationship between “democracy” and “secrecy” has always been debated, and it has been highlighted by the system of judicial appointments. The proposed judicial appointments commission (JAC) seeks to partly answer that question. Under review is the judicial collegium method of appointments, in use since the 1990s (which consists today in the supremacy of five senior-most justices of the Supreme Court, including the chief justice of India), as against the constitutional method in place between the 1950s and the 1990s (where the executive nominated candidates in consultation with the CJI and such other justices as it deemed fit).

Neither method can be said to have failed or succeeded, because the citizen has no way of knowing who the candidates are, how they are selected and why. No empirical study of judicial appointments is possible because the records are not available, and like the electoral nomination of candidates, the right to information does not exist so far as judicial elevations or transfers of high court justices are concerned. Stories in which judges, lawyers, law ministers and journalists tell us about the “system” are abundant, but such anecdotal evidence is hearsay and not ordinarily admissible in a court of law.

In the three judges cases, including a reference for advisory opinion, the court arrogated the power to elevate (and transfer high court) justices through a tortured interpretation of Articles 124 and 217 of the Constitution, by saying that the word “consultation” shall mean the “consent” of the CJI. But a constitutional convention giving primacy to the CJI was already in place — according to the law secretary’s affidavit, only seven out of some 348 recommendations were negatived by the Central government. If the system of executive nomination has worked so well, why the change?

Are the CJIs, in some cases, constrained to approve executive-dominated elevations? Justice Markandey Katju’s recent expose suggests that the CJI is vulnerable to alleged manoeuvring by the prime minister’s office. The justices in the judges cases seemed to think so, given that they accorded primacy first to the CJI, then to two judges and the CJI, and finally to a collegium of five justices.

To its credit, the UPA government introduced nearly half a dozen bills for judicial appointments and transfers, and contemplated a slew of measures on judicial standards, accountability, non-impeachment offences and transparency of the judicial process. The new government is espousing the cause; it clearly disfavours the political bravado that inspired a Union law minister to say that he had justices in his pockets; this is no longer the signature tune of modern governance. Rather, the state now wants a JAC that would avoid the vices of politicians appointing judges, and of the justices appointing their own.

This is welcome, as is the agreement that the senior-most judge may only be the CJI (at least till 2021, when even reforms contemplating a minimum tenure for the CJI may occur). The many UPA bills made the CJI the chair of the JAC, converged in making two senior-most justices of the Supreme Court members, provided a

process to identify two eminent citizens, and finally culminated in the 120th constitutional amendment bill, which too lapsed in the Lok Sabha. The NDA is likely to revive the amendment and bill in the new Lok Sabha. The text of the bills, the debates in Parliament as they occurred, the Law Commission’s report and other reports make compulsory, if dull, reading on this vexed subject.

In a consultation with eminent jurists convened by the Union law minister on July 28, while most went to the extent of saying that the judicial collegium had failed and agreed that the system of appointments needed to be changed, all the “jurists” endorsed the “dominance” of the CJI and his senior companions. If the advice of the CJI and his companion justices is to have an “edge” or “dominance”, how is it to be achieved? Should the JAC then adopt a weighted voting procedure, not unlike the United Nations Security Council? If the JAC is to decide by consensus, what will happen if the justices do not yield? What if some other eminent members, including the Union law minister, remain recalcitrant? And how much weight, if any, should be given to the Intelligence Bureau reports on prospective candidates?

A greater fundamental difficulty is posed by the basic structure doctrine. I have previously argued in these pages (‘Just governance’, IE, June 10) and at a New Delhi consultation that the best course is to obtain an advisory opinion from the Supreme Court on a draft amendment bill, considering whether abolition of the judicial collegium offends the basic structure and if it does, how the alternate JAC could be made constitutionally compatible. Already, the CJI has made it clear that the matter can only be settled in a judicial opinion; since the judges cases were decided judicially, no question arises of a mere administrative order by the court.

The court may advise the president that the basic structure is not violated or that certain changes to the JAC could save it from the indictment of offending it. This will result in a healthy dialogue on system change and collaboration, rather than an avoidable conflict between Parliament and the Supreme Court.

The basic structure here is the independence of the judiciary and judicial review. It is this power that ultimately decides the essential features of the Constitution. Appointments and transfers of justices definitely affect the basic structure, and the court should have a say in it. The executive may present evidence before the justices on why the judicial architecture needs to be reformed, and how the judicial collegium has “failed” the nation. Since almost all the leaders of the Bar believe that the judicial collegium has “failed” in drawing the best and brightest to become justices, they should have little difficulty in persuading the court.

The argument against an advisory opinion is that it would take undue time. But the 2G reference was relatively expeditiously disposed; the non-collegium justices would be justified in accelerating the opinion. In any event, the time taken for the reference will be democratically well-invested. The alternative of an adversarial proceeding, where the court may continue via a stay order to make appointments and transfers, scarcely advances the cause. Even under Kesavananda Bharati vs State of Kerala (which enshrined the basic structure doctrine), Parliament has plenary powers to amend the Constitution. However, enacting the JAC without consulting the court may invite judicial wrath, and even lead to a constitutional crisis.

The writer is professor of law, University of Warwick, and former vice chancellor of the Universities of South Gujarat and Delhi

Voter has right to negative voting: SC

Posted in CONSTITUTION, DEMOCRACY, FUNDAMENTAL RIGHTS by NNLRJ INDIA on September 27, 2013
SUPREME COURT OF INDIA

SUPREME COURT OF INDIA

In a landmark verdict, the Supreme Court on Friday held that citizens have right to cast negative vote rejecting all candidates contesting polls, a decision which would encourage people not satisfied with contestants to turn up for voting.

The apex court directed the Election Commission to provide ‘none of the above options’ at the end of the list of candidates in electronic voting machines (EVMs) and ballot papers to allow voters to reject those contesting polls.

A bench headed by Chief Justice P Sathasivam said that negative voting would foster purity and vibrancy of elections and ensure wide participation as people who are not satisfied with the candidates in the fray would also turn up to express their opinion rejecting contestants.

It said that the concept of negative voting would bring a systemic change in the election process as the political parties will be forced to project clean candidates in polls.

The bench noted that the concept of negative voting is prevalent in 13 countries and even in India, parliamentarians are given an option to press the button for abstaining while voting takes place in the House.

The court said right to reject candidates in elections is part of fundamental right to freedom of speech and expression given by the Constitution to Indian citizens.

It said that democracy is all about choice and significance of right of citizens to cast negative voting is massive.

With the concept of negative voting, the voters who are dissatisfied with the candidates in the fray would turn up in large number to express their opinion which would put unscrupulous elements and impersonators out of the polls, it said.

The bench, while reading out the operative portion of the judgement, did not throw light on a situation in case the votes cast under no option head outnumber the votes got by the candidates.

It said that secrecy of votes cast under the no option category must be maintained by the Election Commission.

The court passed the order on a PIL filed by an NGO, People’s Union for Civil Liberties (PUCL) which had submitted that voters be given the right to negative voting.

Agreeing with the NGO’s plea, the bench passed the path-breaking verdict and introduced the concept of negative voting in the election process, saying that it would further empower the voters in exercising their franchise.

The latest verdict is part of series of judgements passed by the apex court on the election process.

Earlier, the apex court had restrained people in custody from contesting elections.

The apex court has also ruled that MPs and MLAs would stand disqualified after being convicted of serious crimes.

The government has brought an ordinance seeking to negate the court’s judgement striking down a provision in the electoral law that protected convicted lawmakers from immediate disqualification.

A two-judge bench of the apex court had felt that the issue on negative voting needed to be adjudicated by a larger bench as there were certain doubts over the interpretation of the ruling passed by a Constitution Bench in the Kuldip Nayar Vs Union of India case relating to a voter’s right.

Under the existing provisions of Rule 49(O) of the Representation of People Act, a voter who after coming to a polling booth does not want to cast his vote, has to inform the presiding officer of his intention not to vote, who in turn would make an entry in the relevant rule book after taking the signature of the said elector.

According to the PUCL, Rule 49(O) was violative of the constitutional provisions guaranteed under Article 19(1)(a) (Freedom of Speech and Expression) and Article 21 (Right to Liberty) and violated the concept of secret ballot.

171376999-PUCL-Anr-v-UoI-Anr

India’s benign constitutional revolution

Posted in CONSTITUTION, COURTS, DEMOCRACY by NNLRJ INDIA on January 26, 2013

WE THE PEOPLE

WE THE PEOPLE

By Shivprasad Swaminathan Published in THE HINDU

How ‘We the People’ came to be the source of authority of the Constitution

This is the story of how and why the framers of the Constitution of India deliberately designed a procedural error in the adoption of the new Constitution with a view to severing the seamless transition of legal authority from the British Crown-in-Parliament to the new Republic of India. The deliberate procedural error consisted in a deviation from the Constitution making procedure prescribed by the Indian Independence Act, 1947 — the law enacted by the British Parliament granting India independence and formally authorising the Constituent Assembly to draft a Constitution for the newly liberated state. To be sure, the framers of the Constitution of India were not the first, and indeed they were not the last to deliberately incorporate such procedural errors in the process of Constitution making. The founders of the Constitutions of several other states including Ireland, Pakistan, Sri Lanka and Ghana, which were being liberated from the British Empire, took such a step. In doing so, they were all motivated by the same goal: that of ensuring constitutional ‘autochthony.’

Constitutional autochthony

The etymological roots of ‘autochthony,’ which is not to be confused with ‘autonomy,’ are to be found in the Greek autos (self) and chthon (earth). The goal of constitutional autochthony is to deliver an indigenous Constitution, the source of whose ‘authority’ can be located in the new state’s own soil. The dominant academic view in the middle of the 20th Century was that autochthony could not be achieved simply by drafting an original Constitution or verbally invoking We the People as the source of its authority, for autochthony does not so much concern the content of the Constitution as its pedigree: the chain of legal validity authorising it.

This proposition found doctrinal support in the influential theory propounded by the legal philosopher, Hans Kelsen, which had it that it was inconceivable for a legal system to split into two independent legal systems through a purely legal process. One of the implications of Kelsen’s theory was that the basic norm (grundnorm) of the imperial predecessor’s Constitution would continue to be at the helm of the legal system of the newly liberated former colony despite the legal transfer of power, precisely because the transfer of power was recognised as ‘legal’ by the Constitution of the imperial predecessor.

On Kelsen’s account, only an ‘unlawful’ or ‘revolutionary’ act could ensure an autochthonous Constitution by rending asunder all continuity with the imperial predecessor.

Such break in legal continuity is automatically achieved where a former colony’s independence is won as the result of an armed revolution, as was the case with the United States of America. Independence in such instances is not granted ‘legally’ by the Crown-in-Parliament and the Constitution of the newly liberated former colony is in no way authorised by the imperial predecessor. The situation is very different where independence of a former colony is not brought about by armed revolution, but is ‘legally’ granted by the imperial predecessor. This was the case with India, Pakistan, Ireland, Sri Lanka and Ghana whose independence was the result of the British Crown-in-Parliament’s enactment of separate statutes of independence (Independence Act) for each of them. The statutes of independence also set up Constituent Assemblies authorising them to draft new Constitutions for each of these States. Following the constitution-making procedure stipulated in the statute of independence would have meant that the validity of the new Constitution could ultimately be traced to an imperial grant. The mere verbal invocation of We the People as the ‘source’ of authority in such cases would have rung hollow, apart from being jurisprudentially implausible since the source of authority of the new Constitution would continue to be the imperial predecessor’s Constitution. In such cases, it was thought that since there was no ‘revolution,’ one had to be deliberately made up in order to secure an autochthonous Constitution. Accordingly, as John Finnis argues, the framers of new Commonwealth Constitutions took great care to do something illegal “so as to make up a revolution, however contrived.”

Irish influence

The Irish were the pioneers in conceiving the idea of a benign legal revolution geared towards constitutional autochthony. Ireland was granted independence under the Irish Free State Constitution Act, 1922 enacted by the British Crown-in-Parliament which also authorised the Irish Constituent Assembly to draft a Constitution for the newly liberated state. Thus, the Irish Constitution of 1922 was not autochthonous.

Though it was drafted by an indigenous Constituent Assembly, its chain of legal validity could be traced to an imperial statutory grant. With a view to changing this state of affairs, in 1937 the Irish Parliament amended the Constitution by deliberately violating the procedure for amendment stipulated in the 1922 Constitution and put the amended Constitution for acceptance in a referendum. Going one step further, the Irish Parliament also repealed the Irish Free State Constitution Act, 1922 enacted by the British Parliament, though it was not empowered to do so. It is widely accepted that this successfully severed the chain of validity with the Crown-in-Parliament and ensured a truly autochthonous Constitution. The framers of the Indian Constitution appear to have rehearsed the Irish route to autochthony to the extent possible in Indian conditions.

Independence was formally granted to India by the Crown-in-Parliament’s enactment of the Indian Independence Act, 1947 though the executive decision to grant India independence was arrived at earlier in the Cabinet Mission Plan (1946). It was under the Cabinet Mission Plan that the Constituent Assembly was envisaged and charged with the mandate of drafting the new Constitution for India. This was legally recognised in Section 8 of the Independence Act. The Cabinet Mission Plan had envisaged that the new Constitution would be put to the Crown-in-Parliament for approval. Though the Indian Independence Act did not reiterate this requirement, it did specify that the new Constitution drafted by the Constituent Assembly would have to receive the assent of the Governor General of India, who would assent to such law in the name of the British Crown.

The framers introduced two deliberate procedural errors in the enactment of the Constitution of India in violation of the Independence Act: a) They did not put the Constitution to the approval of the either the British Parliament as envisaged by the Cabinet Mission Plan or the Governor-General as envisaged in the Indian Independence Act 1947; b) Following the Irish precedent, Article 395 of the Constitution of India repealed the Indian Independence Act — something the Constituent Assembly did not have the authorisation to do. In doing so, the framers not only repudiated the source which authorised them to enact the Constitution but it was also a denial, albeit symbolic, of Indian independence being a grant of the imperial Crown-in-Parliament. This ensured that the chain of constitutional validity did not extend all the way to the Crown-in-Parliament, thus delivering a completely autochthonous Constitution. In this fashion, We the People, through the members of the Constituent Assembly, came to be the ‘source’ of authority of the Constitution, rather than the authority being traceable to the Indian Independence Act enacted by the British Crown-in-Parliament.

Why did it matter?

This quest for autochthony is likely to come across to some as an abstruse quibble that shouldn’t concern anyone other than the most pedantic legal theorists. There were, however, two reasons why the framers of new Commonwealth Constitutions felt constrained to pay such close attention to it. Firstly, it was feared that the British Crown-in-Parliament could, however improbably, reassert its authority over the newly liberated state by repealing the statute of independence and abrogating the new Constitution. There was, of course, no immediate apprehension of the British taking such a step. All the same, the framers of new Commonwealth Constitutions would have found, as Geoffrey Marshall notes, merely prudential reassurances to be precarious pegs to hang their nation’s independence on. Secondly, for sentimental considerations, the framers would have been loath to let the new Constitution be grounded in an imperial grant or be assented to by the British Crown. They would have wanted the new Constitution to be truly autochthonous, stemming from the authority of We the People so that an independent future could, albeit symbolically, be insulated from a troubled imperial past.

(Shivprasad Swaminathan is Assistant Professor, Jindal Global Law School)

By Shivprasad Swaminathan Published in THE HINDU

The Leveson Inquiry – A Report into the Culture, Practices and Ethics of the Press

Posted in DEMOCRACY, MEDIA ETHICS, MEDIA ISSUES, MEDIA LAW by NNLRJ INDIA on December 9, 2012

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Remarks by Lord Justice Leveson: Thursday 29 November 2012

For the seventh time in less than 70 years, there is a new report, commissioned by the Government, dealing with concerns about the press. It was sparked by public revulsion about a single act – the hacking of the mobile phone of a murdered teenager. From that beginning, it has expanded to cover the culture, practices and ethics of the press and its conduct in relation to the public, the police and politicians.

 This Inquiry has been the most concentrated look at the press this country has ever seen. In nearly nine months of oral hearings, 337 witnesses gave evidence in person and the statements of nearly 300 others were read into the record. I am grateful to all who have contributed. The Report will now be published on the Inquiry website which also carries the statements, exhibits and both transcripts and video coverage of the evidence.

 For over 40 years, as a barrister and a judge, I have watched the press in action, day after day, in the courts in which I have practised. I know how vital the press is – all of it – as guardian of the interests of the public, as a critical witness to events, as the standard bearer for those who have no-one else to speak up for them. Nothing in the evidence I have heard or read has changed that view. The press, operating freely and in the public interest, is one of the true safeguards of our democracy. As a result, it holds a privileged and powerful place in our society.

But this power and influence carries with it responsibilities to the public interest in whose name it exercises these privileges. Unfortunately, as the evidence has shown beyond doubt, on too many occasions, those responsibilities (along with the Editors’ Code which the press wrote and promoted) have simply been ignored. This has damaged the public interest, caused real hardship and, also on occasion, wreaked havoc in the lives of innocent people.

 What the press do and say is no ordinary exercise of free speech. It operates very differently from blogs on the internet and other social media such as Twitter. Its impact is uniquely powerful. A free press in a democracy holds power to account. But, with a few honourable exceptions, the UK press has not performed that vital role in the case of its own power.

None of this, however, is to conclude that press freedom in Britain, hard won over 300 years ago, should be jeopardised. On the contrary, it should not. I remain firmly of the belief that the British press – I repeat, all of it, – serves the country very well for the vast majority of the time. There are truly countless examples of great journalism, great investigations and great campaigns. Not that it is necessary or appropriate for the press always to be pursuing serious stories for it to be working in the public interest. Some of its most important functions are to inform, educate and entertain and, when doing so, to be irreverent, unruly and opinionated.

But none of that means that the press is beyond challenge. I know of no organised profession, industry or trade in which the serious failings of the few are overlooked or ignored because of the good done by the many. Were it so in any other case, the press would be the very first to expose such practices.

The purpose of this Inquiry has been two fold. First, it has been to do just that – to expose precisely what has been happening. Secondly, it is to make recommendations for change. As to change, almost everyone accepts that the Press Complaints Commission has failed in the task, if indeed it ever saw itself as having such a task, of keeping the press to its responsibilities to the public generally and to the individuals unfairly damaged.

There must be change. But let me say this very clearly. Not a single witness proposed that either Government or politicians all of whom the press hold to account, should be involved in the regulation of the press. Neither would I make any such proposal.

 Let me deal very briefly with the idea that this Inquiry might not have been necessary if the criminal law had simply operated more effectively. There were errors in aspects of the way the phone hacking investigation was managed in 2006 and in relation to the failure to undertake later reviews, and there are some problems that need to be fixed with the criminal and civil laws and also in relation to data protection. In particular, exemplary damages should be available for all media torts. In the end, however, law enforcement can never be the whole answer. As we have seen, that is because the law-breaking in this area is typically hidden, with the victims generally unaware of what has happened. Even if it were possible – and it is certainly not desirable – putting a policeman in every newsroom is no sort of answer.

In any event, the powers of law enforcement are significantly limited because of the privileges that the law provides to the press, including for the protection of its sources. That is specifically in order that it can perform its role in the public interest. What is needed therefore is a genuinely independent and effective system of selfregulation of standards, with obligations to the public interest. At the very start of the Inquiry and throughout I have encouraged the industry to work together to find a mechanism for independent self-regulation that would work for them and would work for the public.

Lord Hunt of Wirral and Lord Black of Brentwood stepped forward to lead the effort. They put forward the idea of a model based on contractual obligations among press organisations. On Monday afternoon of this week, with the Report being printed, I received two separate submissions from within the press telling me that most of the industry was now prepared to sign self-regulation contracts.

The first submission recognises the possibility of improvements to the model proposed so far. The second expresses confidence that the model proposed by Lord Black and Lord Hunt addresses the criticisms made at the Inquiry. Unfortunately, however, although this model is an improvement on the PCC, in my view, it does not come close to delivering, in the words of the submission itself, “regulation that is itself, genuinely, free and independent both of the industry it regulates and of political control”. Any model with editors on the main Board is simply not independent of the industry to anything approaching the degree required to warrant public confidence. It is still the industry marking its own homework. Nor is the model proposed stable or robust for the longer-term future.

The press needs to establish a new regulatory body which is truly independent of industry leaders and of Government and politicians. It must promote high standards of journalism, and protect both the public interest and the rights and liberties of individuals. It should set and enforce standards, hear individual complaints against its members and provide a fair, quick and inexpensive arbitration service to deal with civil law claims.

The Chair and the other members of the body must be independent and appointed by a fair and open process. It must comprise a majority of members who are independent of the press. It should not include any serving editor or politician. That can be readily achieved by an appointments panel which could itself include a current editor but with a substantial majority demonstrably independent of the press and of politicians. In the Report, I explain who might be involved.

Although I make some recommendations in this area, it is absolutely not my role to seek to establish a new press standards code or to decide how an independent selfregulatory, body would go about its business. As to a standards code, I recommend the involvement of an industry committee (which could involve serving editors).

That committee would advise the regulatory body and there should be a process of public consultation. In my report, I also address the need for incentives to be put in place to encourage all in the industry to sign up to this new regulatory system. Guaranteed independence, long-term stability, and genuine benefits for the industry, cannot be realised without legislation. So much misleading speculation and misinformation has been spread about the prospect of new legislation that I need to make a few things very clear. I am proposing it only for the narrow purpose of recognising a new independent self-regulatory system. It is important to be clear what this legislation would not do; it would not establish a body to regulate the press; that is for the press itself to do.

So what would this legislation achieve? Three things. It would enshrine, for the first time, a legal duty on the Government to protect the freedom of the press. Secondly, it would provide an independent process to recognise the new self-regulatory body and thereby reassure the public of its independence and efficacy. Thirdly, it would provide new and tangible benefits for the press. As members of the body, newspapers could show that they act in good faith and have sought to comply with  standards based on the public interest. Decisions of the new recognised regulator could create precedents which could, in turn, help a court in civil actions. In addition, the existence of a formally recognised, free arbitration system is likely to provide powerful arguments as to costs should a claimant decide not to use that free system or, conversely, if a newspaper is not a member. In my view, the benefits of membership should be obvious to all.

This is not, and cannot reasonably or fairly be characterised as, statutory regulation of the press. I am proposing independent regulation of the press organised by the press itself with a statutory process to support press freedom, provide stability and guarantee for the public that this new body is independent and effective. I firmly believe that these recommendations for self-regulation are in the best interests of the public and the press; they have not been influenced by any political or other agenda but solely by what I believe is fair and right for everyone. What is more, given the public interest role of which the press is rightly proud, I do not think that either the victims I have heard from, or the public in general, would accept anything less.

Turning to the police, the relationship between police and public is vital to the essential requirements of policing by consent and the press have a very important part to play in its promotion. Although there has been a limit on how far it has been possible for the Inquiry to go because of the need not to prejudice any ongoing investigations, whatever Operation Elveden (concerning corrupt payments to officials) might reveal, I have not seen any evidence to suggest that corruption by the press is a widespread problem in relation to the police. However, while broadly endorsing the approach of recent reviews into police governance, I have identified a number of issues that I recommend should be addressed.

As for the press and politicians, the overwhelming evidence is that relations on a day-to-day basis are in robust good health and performing the vital public interest functions of a free press in a vigorous democracy; everyday interactions between journalists and politicians cause no concern. But senior politicians across the spectrum have accepted that in a number of respects the relationship between politics and the press has been ‘too close’. I agree.

What I am concerned about is a particular kind of lobbying, conducted out of the public eye, through the relationships of policy makers and those in the media who stand to gain or lose from the policy being considered. That gives rise to the understandable perception that the power of the press to affect political fortunes may be used to influence that policy. This, in turn, undermines public trust and confidence in decisions on media matters being taken genuinely in the public interest. This is a long-standing issue, and one which, over the years and across the political spectrum, has repeatedly resulted in opportunities being missed to respond appropriately to legitimate public concern about press behaviour.

The press is, of course, entitled to lobby in its own interests, whether editorially or through the senior political access it enjoys. It is, however, the responsibility of the politicians to ensure that the decisions that are taken are seen to be based on the public interest as a whole. This means the extent to which they are lobbied by the press should be open and transparent; and that the public should therefore have a basic understanding of the process. In this limited area, I have recommended that consideration should be given to a number of steps to create greater transparency about these influential relationships at the top of politics and the media and so address the issue of public perception and hence trust and confidence. A good start would be for those steps towards greater transparency to be taken in relation to press lobbying about this Report.

Similar considerations apply to the role of Ministers when taking decisions about the public interest in relation to media ownership. I believe that democratically accountable Ministers are the right people to make these decisions. However, I have made recommendations as to how the process can be made much more transparent to ensure that in future there should be no risk even of the perception of bias. It is essential that the UK retains a plural media with a genuine diversity of ownership, approach and perspective. In my opinion, the competition authorities should have the means to keep levels of plurality under review and be equipped with a full range of remedies to deal with concerns.

I must now place on record my thanks to all those who participated in the Inquiry.These are the assessors who have advised in areas of their expertise and who were selected by the Government with the support of the Leader of the Opposition, in the Prime Minister’s words “for their complete independence from all interested parties”; Robert Jay and counsel, for collating and presenting such a massive volume of evidence so efficiently; everyone in the Inquiry team who has worked so hard to achieve so much in such limited time; the core participants and their lawyers; and, most of all, the public who have provided evidence, views and submissions.

As I said at the beginning, this is the seventh time in less than 70 years that these issues have been addressed. No-one can think it makes any sense to contemplate an eighth. I hope that my recommendations will be treated in exactly the same cross party spirit which led to the setting up of the Inquiry in the first place and will lead to a cross party response. I believe that the Report can and must speak for itself; to that end, I will be making no further comment. Nobody will be speaking for me about its contents either now or in the future. The ball moves back into the politicians’ court: they must now decide who guards the guardians.

The Report has been published at http://www.official-documents.gov.uk/document/hc1213/hc07/0780/0780.asp

The Executive Summary has been published at http://www.official-documents.gov.uk/document/hc1213/hc07/0779/0779.asp

A copy of Lord Justice Leveson’s statement has been published at Remarks by Lord Justice Leveson – 29 November 2012 (pdf, 36KB)

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