When right to private defence is wrong

BY GEETA RAMASESHAN PUBLISHED IN  THE HINDU

A police claim of self-defence to justify encounter killings must be held to higher standards of proof as the force is armed and trained for combat.

The “encounter” deaths of five persons suspected of having carried out two bank robberies in Chennai is reminiscent of the Batla house encounter. It has once again focused attention on the practice of extrajudicial killings in Tamil Nadu. Reports in The Hindu indicated that the police got a tip-off about where the perpetrators were, after the photograph of one suspect appeared in the media. As a follow-up, the official version goes, policemen visited the premises where the five men were and asked them to surrender. They in turn fired on the police, which resulted in the five being shot dead. Such a construction poses many uncomfortable questions.

How was the man in the photograph identified as one of the five men in the house? Again, why did the police not wait for the men to surrender? At the time of firing there was nothing to indicate that those killed were involved in the heist. They were purported to have been identified by eyewitnesses after they were killed.

The official claim that the police had to exercise their right of self-defence as they were shot at raises more questions than answers. It sweeps under the carpet disturbing aspects about the modus operandi of the police, in instances when they seem to conduct themselves more like vigilante groups rather than as protectors of the law.

In all cases of encounter deaths, the practice is to claim that the killings were done in self-defence. Under the penal code, the right of private defence is available to all, and no distinction is made between the police and layman. However the taking away of life can be done only under exceptional circumstances. The person seeking the right of private defence must have a reasonable apprehension that the person who is killed, would have killed him or her, or caused grievous hurt, could commit rape, kidnapping or abduction.

Private defence or murder

As a necessary corollary to such defence it is imperative that there is a registration of a First Information Report (FIR) considering such a death as murder or culpable homicide not amounting to murder. In order to claim a right of private defence to cause death, the person must show that there were circumstances giving to reasonable grounds for apprehension that death, or other acts described earlier would have resulted if the right was not exercised. Courts have held that if medical examination of the person reveals superficial or simple injuries, there can be no right to private defence. The violence used to defend oneself must not be unduly disproportionate to the injury that is sought to be averted and should not exceed its legitimate purpose.

But in order to prove that it was a legitimate exercise of the right, it is necessary to have an investigation with the burden of proof shifting to the person who claims this right. This right to private defence cannot be used to punish a suspect.

However FIRs, in most encounter cases, invariably state that on seeing the police the other party opened fire with a view to kill or threatened to kill. The issue of considering whether the death was a result of private defence or was one of murder is never factored in the FIR. Family members of the deceased or human rights activists who wish to reopen such cases find it an uphill task to get even a death certificate or post-mortem report and are thwarted at every stage, often facing threats to their life.

NHRC guidelines

In response to a complaint from the Andhra Pradesh Civil Liberties Committee (APCLC) relating to encounter killings of suspected members of the Peoples’ War Group (PWG), the National Human Rights Commission (NHRC) issued a series of guidelines that required all police stations to immediately record such deaths and hand over investigation to an independent agency such as the CID if the persons concerned were from the same police station. The NHRC guidelines also directed that in cases of specific complaints of fake encounters it was necessary to register and investigate the case by a special agency such as the CID. Family members of the deceased are required to be associated with the magisterial enquiry that must be conducted in encounter deaths and prompt disciplinary action must be taken against errant officers.

While these guidelines were issued in 2003, the commission now seems to be condoning such violence. Recently, the Chairperson expressed his view that extrajudicial executions could solve law and order issues and cited examples of “encounter” deaths of persons suspected of being members of the Mumbai underworld and Maoists.

The Madurai based human rights organisation, People’s Watch, has documented at least 23 such instances in the past four years in Tamil Nadu and filed a public interest litigation seeking the appointment of a retired High Court Judge to investigate “encounter deaths” in Tamil Nadu and to register a FIR in every such case. The writ is still pending.

A lay person faces a trial if claiming right to private defence if it results in death. But despite being trained in combat and armed with weapons, those who indulge in encounters do not even face an investigation. Hence, the test for “reasonable apprehension” of imminent danger cannot be the same for such persons and needs to be addressed with a categorical shift in burden of proof in cases of such custodial violence.

(Geeta Ramaseshan is an advocate at the Madras High Court. E-mail: geetaramaseshan@gmail.com)

http://www.thehindu.com/opinion/op-ed/article2943201.ece?homepage=true

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Rigid norms for senior advocate status irk lawyers

SUPREME COURT OF INDIA

SUPREME COURT OF INDIA

J VENKATESAN IN THE HINDU

Last month, after a gap of about 18 months, the Full Court of the Supreme Court designated 11 retired judges of various High Courts as senior advocates, but deferred its decision on conferring the status on five advocates who had also applied.The Full Court did not designate any practising advocate as senior; without rejecting their applications, it deferred their consideration for the next meeting. Two advocates are among the five lawyers whose names have been deferred for the second or third time. The last meeting of the Full Court for designating senior advocates took place in February 2010, when seven were designated seniors; five of them were retired judges. Since 1962, the Supreme Court has designated 371 lawyers, including retired judges, as seniors.

The Supreme Court follows a rigorous procedure for considering applications of practising advocates. As per the rules, a minimum of five sitting judges are expected to recommend the candidature of a practising advocate. Upon such a recommendation, the application is placed before the Full Court. Though the Chief Justice of India has discretionary power in exceptional cases, the status is invariably granted by the Full Court unanimously. Section 17 of the Advocates Act of 1961 empowers both the Supreme Court and the High Courts to designate the practising advocates with a 10-year standing in the Bar and one who has completed 45 years of age as senior advocate. The original Act required designation only on the basis of “experience and standing at the Bar.”

However, with an amendment in 1993, the requirement has been “standing at the Bar or special knowledge of experience in Law.” The aim of the amendment is that the advocates with a special knowledge of Law should be designated as senior advocates, as they bring in their expertise in deciding cases. In the fast-expanding field of Law, expertise has become very crucial. The fields of expertise include criminal, civil, commercial, taxes, constitutional, arbitration, inter-State water disputes, patents and copy rights and telecom disputes.

The High Courts grant the designation liberally. Recently, the Bombay High Court designated 17 advocates. The Delhi High Court designated 12 advocates in February 2011. Even the smaller High Courts, such as Sikkim with three judges and Uttarakhand, have designated advocates quite liberally. Many of the practising advocates of the Supreme Court have been designated by these High Courts.

The designation is the practice followed by the Commonwealth countries. In England, the designation is known as Queen’s Counsel or King’s Counsel. Traditionally, Queen’s Counsel were selected from among barristers. However, after 1994, even the solicitors are considered for designation. The system of designation was reformed in 2005 to make it more inclusive. During 2008-09, 2009-10 and 2010-11, the designation of Queen’s Counsel was conferred on 104, 129 and 120 lawyers.

Proper guidelines

Though the designation is a mark of recognition, it places restriction on practice. The designated seniors are not expected to file ‘vakalat’ or entertain clients directly; they are not supposed to draw pleadings. Legal experts are unanimous that there must be proper guidelines put in place for designation and all applications should be disposed of in a time-bound manner, say, six months. Further, if an application is rejected, they say, the reason must be communicated to the applicant.

According to the senior advocate and former president of the Supreme Court Bar Association, M.N. Krishnamani, lack of proper guidelines and norms led to a situation a few years ago, when 64 lawyers got designated by the Sikkim High Court as senior advocates when not even one of them belonged to Sikkim and not even one of them appeared in a single matter before that court.

He feels that the insistence on recommendation by five judges even for presenting an application may not be relevant since the decision is taken unanimously by the Full Court. Though the designation of seniors should not be liberal, the whole process has to be more transparent and certain discreet norms have to be applied. If statistical data are collected, that will prove that judges’ close relatives get designated even when they are young, and judges’ relatives become High Court judges easily.

The former Attorney General, Soli Sorabjee, says there is nothing wrong in five Supreme Court judges, including the Chief Justice, performing the function. There should not be any inflexible rule that every retired judge of the High Court should be designated as senior counsel. There are some judges of the High Court who have acquired dubious reputation, and they do not deserve to be made senior counsel. The designation should not be deferred for a long time; there cannot be a fixed time of six months, but applications should be decided in a reasonable time.

Senior advocate K.K. Venugopal, while justifying the rigid norms, says: “The reasons why the court is not liberal in granting the status is that the court expects the highest standards of rectitude to be maintained by seniors, though, of course, this would apply to others as well.” Asked whether any time limit could be fixed for the disposal of applications, he says: “I do not think there should be any time limit within which an application must be decided. This is because there is no vacancy to be filled within a time limit.” On applications being deferred, he says: “It would be to the advantage of an applicant if the decision is deferred rather than being rejected outright…”

Supreme Court Bar Association president P.H. Parekh says: “The system that five Supreme Court judges should recommend an advocate’s name…is quite reasonable and proper. However, the designation should be granted more liberally than is being done now, “especially to those advocates who appear in the Supreme Court regularly and who have been appearing for a sufficient long time. Their designation should be liberally considered,” he says.

http://www.thehindu.com/todays-paper/tp-national/article2461062.ece

The Collegium Controversy

Supreme Court of India

KRISHNADAS RAJAGOPAL IN THE INDIAN EXPRESS

What is the collegium system?

It is a system under which appointments and transfers of judges are decided by a forum of the Chief Justice of India and the four senior-most judges of the Supreme Court. It has no place in the Indian Constitution.

What does the Constitution actually prescribe?

Article 124 deals with the appointment of Supreme Court judges. It says the appointment should be made by the President after consultation with such judges of the High Courts and the Supreme Court as the President may deem necessary. The CJI is to be consulted in all appointments, except his or her own.

Article 217 deals with the appointment of High Court judges. It says a judge should be appointed by the President after consultation with the CJI and the Governor of the state. The Chief Justice of the High Court concerned too should be consulted.

How and when did the other system evolve?

The collegium system has its genesis in a series of three judgments that is now clubbed together as the “Three Judges Cases”. The S P Gupta case (December 30, 1981) is called the “First Judges Case”. It declared that the “primacy” of the CJI’s recommendation to the President can be refused for “cogent reasons”. This brought a paradigm shift in favour of the executive having primacy over the judiciary in judicial appointments for the next 12 years.

How did the judiciary come to get primacy?

On October 6, 1993, came a nine-judge bench decision in the Supreme Court Advocates-on Record Association vs Union of India case — the “Second Judges Case”. This was what ushered in the collegium system. The majority verdict written by Justice J S Verma said “justiciability” and “primacy” required that the CJI be given the “primal” role in such appointments. It overturned the S P Gupta judgment, saying “the role of the CJI is primal in nature because this being a topic within the judicial family, the executive cannot have an equal say in the matter. Here the word ‘consultation’ would shrink in a mini form. Should the executive have an equal role and be in divergence of many a proposal, germs of indiscipline would grow in the judiciary.”

How final was this?

Justice Verma’s majority judgment saw dissent within the bench itself on the individual role of the CJI. In a total of five judgments delivered in the Second Judges case, Justice Verma spoke for only himself and four other judges. Justice Pandian and Justice Kuldip Singh went on to write individual judgments supporting the majority view. But Justice Ahmadi had dissented and Justice Punchhi took the view that the CJI need not restrict himself to just two judges (as mentioned in the ruling) and can consult any number of judges if he wants to, or none at all.

For the next five years, there was confusion on the roles of the CJI and the two judges in judicial appointments and transfers. In many cases, CJIs took unilateral decisions without consulting two colleagues. Besides, the President became only an approver.

What was done to deal with the confusion?

In 1998, President K R Narayanan issued a presidential reference to the Supreme Court as to what the term “consultation” really means in Articles 124, 217 and 222 (transfer of HC judges) of the Constitution. The question was if the term “consultation” requires consultation with a number of judges in forming the CJI’s opinion, or whether the sole opinion of the CJI constituted the meaning of the articles. In reply, the Supreme Court laid down nine guidelines for the functioning of the coram for appointments/transfers; this came to be the present form of the collegium (see box).

Besides, a judgment dated October 28, 1998, written by Justice S P Bharucha at the head of the nine-judge bench, used the opportunity to strongly reinforce the concept of “primacy” of the highest judiciary over the executive. This was the “Third Judges Case”.

What are the arguments against the collegium system?

Experts point to systemic errors such as:

The administrative burden of appointing and transferring judges without a separate secretariat or intelligence-gathering mechanism dedicated to collection of and checking personal and professional backgrounds of prospective appointees;

A closed-door affair without a formal and transparent system;

The limitation of the collegium’s field of choice to the senior-most judges from the High Court for appointments to the Supreme Court, overlooking several talented junior judges and advocates.

What moves were taken to correct these?

The Law Commission in its 214th Report on ‘Proposal for Reconsideration of Judges cases I, II and III’ recommended two solutions:

To seek a reconsideration of the three judgments before the Supreme Court.

A law to restore the primacy of the Chief Justice of India and the power of the executive to make appointments.

What is the suggested alternative to the collegium?

A National Judicial Commission remains a proposal. The Constitution (98th Amendment) Bill was introduced in the Lok Sabha by the NDA government in 2003. It provided for the constitution of an NJC to be chaired by the CJI and with two of the senior-most judges of the Supreme Court as its members. The Union Law Minister would be a member along with an eminent citizen to be nominated by the President in consultation with the Prime Minister. The Commission would decide the appointment and transfer of judges and probe cases of misconduct by judges, including those from the highest judiciary.

SC guidelines on appointments

1 The term “consultation” with the Chief Justice of India in Articles 124 (2), 217(1) and 222 (1) requires consultation with a plurality of judges in the formation of the opinion of the CJI. The sole, individual opinion of the CJI does not constitute consultation.

2 The CJI can only make a recommendation to appoint a judge of the Supreme Court and to transfer a Chief Justice or puisne judge of a High Court in consultation with the four senior-most judges of the Supreme Court. As far as the High Courts are concerned, the recommendation must be made in consultation with the two senior-most judges of the Supreme Court.

3 Strong cogent reasons do not have to be recorded as justification for a departure from the order of seniority in respect of each senior judge who has been passed over. What has to be recorded is the “positive reason for the recommendation”.

4 The views of the judges consulted should be in writing and should be conveyed to the Government of India by the CJI along with his views to the extent set out in the body of this opinion.

5 The CJI is obliged to comply with the norms and the requirement of the consultation process in making his recommendations.

6 Recommendations by the CJI without [such compliance] are not binding upon the government.

7 The transfer of High Court judges is judicially reviewable only if the CJI took the decision without consulting the other four judges in the Supreme Court collegium, or if the views of the Chief Justices of both High Courts [involved in the transfer] are not obtained.

8 The CJI is not entitled to act solely in his individual capacity, without consultation with other judges of the Supreme Court, in respect of materials and information conveyed by the Government for non-appointment of a judge recommended for appointment.

9 The CJI can consult any of his colleagues on the appointment of a HC judge to the Supreme Court or transfer of a puisne judge. The consultation need not be limited to colleagues who have occupied the office of a judge or Chief Justice of that particular High Court .

RS passes Sen impeachment motion and questions how judges appoint themselves

Parliament building in New Delhi (Sansad Bhava...

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INDIAN EXPRESS

The Rajya Sabha today passed by an overwhelming majority a motion to impeach Calcutta High Court judge Justice Soumitra Sen on charges of misappropriation of large sums of money and making false statements and misrepresenting facts of that misappropriation. And, in the process, the Elders used the opportunity to pose a question to the higher judiciary: how did somebody like Sen, whose conduct as a lawyer was highly questionable, become a judge in the first place?

That question wasn’t purely rhetorical — speaker after speaker during the four-hour debate got up to question the current collegium system of appointment. And many MPs, cutting across party lines, criticised what they called the growing tendency of the higher judiciary to step into the domain of the executive and the legislature.

While 189 members voted in favour of the motion to impeach the 53-year-old judge, 17 members, including 16 from the BSP, voted against it. The BSP was the only party that came out in support of the judge.

Contacted after the vote, Sen told The Indian Express: “I am extremely disappointed… There is no question of my resigning. I shall fight till the end and explore all legal remedies. I am honest on this issue and will continue to fight my case.”

Not many had bought this case. Continuing from where he left yesterday, Leader of the Opposition in the Rajya Sabha Arun Jaitley said that the time had come to revisit the procedure for appointment of judges, strongly favouring a National Judicial Commission (NJC) to replace the collegium system. “The system of judges alone appointing judges must now change. India needs a National Judicial Commission to appoint judges,” Jaitley said. He said the NJC should comprise representatives of the judiciary and executive, as well as prominent citizens.

“Both the pre-1993 and the post-1993 system had several handicaps. The best in this country are not willing to become judges. We have to seriously consider why… We should seriously consider a system which is being debated about setting up a National Judicial Commission… Public interest has to be protected in the matter of appointment of competent judges, in the matter of appointment of judges who are men of integrity, men of scholarship. Not only this, the criteria for appointment today does not exist. Is it today the discretion of the collegium? Collegium is also a system of sharing the spoils. When the High Courts recommend, members of the collegium share the spoils,” he said.

Talking about judicial over-reach, Jaitley said: “Separation of powers requires that every institution works in its own spheres. And if every institution works in its own spheres, it has to lay down the lakshman rekha of its own jurisdiction..And I must candidly confess that this attempt to encroach upon the lakshman rekha is neither coming from governments of the day in the Centre or the States nor is it coming from the Executive or the Legislature. Some serious sidestepping is coming from the judicial institution itself.”

He was also critical of the “increased trend” of the Executive giving jobs to judges after their retirement, saying, “There is a possibility of retirement-eve judgments getting influenced in search of post-retirement jobs…this is a serious threat to judicial independence.” Jaitley also reiterated that Sen had tried to mislead the House by presenting “serious falsehood” about the facts of his case in the House yesterday.

Taking a dig at the recent incidence of the apex court taking an ideological stand, Jaitley said, “Courts cannot say that this is neoliberalism which is creating problems. Courts cannot have an ideology. The only ideology that courts can have is commitment to the rule of law and what law is made by Parliament. Courts cannot tell this to the Government.”

Congress MP E M S Natchiappan said he “felt sorry” the way in which a serving judge had attacked the judiciary, especially a former CJI, in words that were never ever used in Parliament.

Springing a surprise, BSP MP Satish Chandra Mishra, who opposed the motion, said: “The findings have said there has only been diversion of funds and not misappropriation and secondly the finding of a single judge was dismissed by a division bench.” Therefore, he said, it could not be the ground for his removal.

In his address, noted lawyer Ram Jethmalani (BJP) launched a frontal attack on Sen, urging members not to be “misled” by his eloquence, which, he said, had nothing to do with morals. “This man did not deserve to be a judge. Not only should this judge go, other judges who do such things should not remain for even one more day…Let us set a good precedent today so that judges with similar bent of mind get a message that they cannot get away with such things.”

Jethmalani added that by paying the Rs 52 lakh, Justice Sen had bought for himself a reprieve from possible prosecution for criminal breach of trust that carries a prison term of 10 years to life.

CPM’s Sitaram Yechury, who moved the motions against Sen, also favoured setting up of a judicial commission.

D Raja (CPI) stressed the need for a judicial system based on probity and integrity. “A National Judicial Commission is required so that there could be accountability of judges,” he said, adding the nation is agitated over corruption in high places.

Tiruchi Siva (DMK) and Bharatkumar Raut (Shiv Sena) spoke on the need for judicial reforms and changes in the system to appoint judges.

Rajneeti Prasad (RJD) said the appointment system has to change and unless this happens, corruption in judiciary will remain, there will always be some appointments based on personal — rather than professional — considerations.

“When a peon is being appointed, he is interviewed. Set up a judicial commission…This way, good judges will be appointed. Otherwise, only children and kin of judges will become judges,” Prasad asserted.

Kumar Deepak Das (AGP) and H K Dua (Nom) also made similar demands. Ravi Shankar Prasad (BJP) said though the judiciary’s fight against corruption was welcome, the trend of judiciary “taking away power by appointing committees — MCD should work like this; this committee should work like this” was wrong. “May be, the authority is not functioning properly, but for that you are not the authority. Let the democratic process, the rule of the law and parliamentary accountability set right the course,” he said.

Immediately after the motion was passed, Prime Minister Manmohan Singh, who remained present in the House and voted, walked up to Yechury and Jaitley and congratulated them on the approval of the motion.

Now that the RS has passed the motion, the matter will go to the Lok Sabha, where, once again, Sen will get an opportunity to present his defence. However, the date when the Lok Sabha will debate the motion, will be decided early next week by the Business Advisory Committee.

http://www.indianexpress.com/news/rs-passes-sen-impeachment-motion-and-questions-how-judges-appoint-themselves/834089/0

Wrong people sometimes elevated to higher judiciary: Ex-CJI Verma

TIMES OF INDIA

NEW DELHI: Acknowledging that certain individuals with doubtful integrity were elevated within the higher judiciary, former Chief Justice of India JS Verma — who had envisaged the collegium system of judicial appointments — said a national commission should be put in place to ensure greater transparency. This comes on the back of growing pressure for greater transparency and accountability in judicial appointments.

Justice Verma – who wrote the 1993 Supreme Court judgment that was institutionalized in the form of a collegium – said his judgment had not been properly implemented and errors had occurred because of “improper working”. Asked if the greatest error was that “the wrong sort of person has either been elevated or made it to a Chief Justice”, he bluntly responded, “Correct”.

Asked in an interview on TV news channel CNN-IBN if, as CJI in 1997, he had first recommended and then withdrawn approval for a High Court judge to be made chief justice of an HC, Justice Verma said, “Well, the prime minister rang me up and said he’ll clear it, because it has come from me, but he had disturbing reports about his integrity. I said don’t clear it, send it back to me. I withdrew the recommendation and also told two of my colleagues in the Supreme Court who had recommended his appointment that this is not the thing to be done and I also rang up that particular judge himself and told him I’m withdrawing your recommendation.”

When asked whether one of his successors, Justice A S Anand, who knew about the incident, later promoted the judge and whether the judge was Justice Ashok Agarwal, Justice Verma responded, “Well, let us not take names”.

Justice Verma added that several people whom he had not considered suitable were elevated after he retired, giving credence to the belief that judicial appointments were not as fair and transparent as made out to be.

In another revelation, the former CJI cited the case of Justice M M Punchhi, whose impeachment had been sought by the campaign for judicial accountability. Justice Verma said he was willing to permit the allegations to be probed but the political executive refused to allow this. When asked if former PM Inder Kumar Gujral refused to accept that an FIR be lodged against Punchhi, Justice Verma said, “Well, that’s what he clearly said. And also the President, who did not say it directly, he said it through the prime minister. That was all I could do.”

Underlining his willingness to have Punchhi probed, Justice Verma explained, “Because the allegations, if proved, were serious and therefore they required to be investigated, so that one could know whether they were true or not.” He acknowledged that Justice Punchhi was later elevated to CJI despite facing what he called “serious allegations”.

Justice Verma was also clear in his stand against former CJI K G Balakrishnan‘s continuance as National Human Rights Commission chairman. Asked if Balakrishnan should demit office in the face of allegations of financial irregularities, Justice Verma said, “He should have demitted long back and if he doesn’t do it voluntarily, the government should persuade him to do that, otherwise, proceed to do whatever can be done to see that he demits office.”

http://timesofindia.indiatimes.com/india/Wrong-people-sometimes-elevated-to-higher-judiciary-Ex-CJI-Verma/articleshow/9006145.cms

Centre planning to revisit collegium system of judicial appointments

J. Venkatesan  IN THE HINDU

 Government to soon bring a Constitution amendment Bill

Judicial Accountability Bill referred to Parliamentary panel  /  Objection of ‘Vision Statement’ to release undertrial prisoners achieved

New Delhi: Union Law Minister Veerappa Moily on Friday said the Centre was contemplating revisiting the 1993 Supreme Court judgment providing for the collegium system of judicial appointments.

In an exclusive interaction with The Hindu, Mr. Moily said the Centre would soon bring a Constitution amendment Bill to revisit the 1993 judgment, giving primacy to the judiciary over the executive in the appointment of judges to the higher judiciary. Without elaborating on the nitty-gritty of the proposal, he said the Bill was likely to be introduced in the monsoon session of Parliament.

The Centre’s decision to review the collegium system of appointments by amending the Constitution comes in the backdrop of the Supreme Court in April referring the matter for consideration by a larger Bench whether the 1993 judgment needed review or not.

Asked about the Judicial Standards and Accountability Bill, 2010, he said the Bill had been referred to the Parliamentary Standing Committee which was expected to submit its report soon and the Bill was likely to be adopted in the monsoon session.

He said the Bill was intended to lay down judicial standards, to enable declaration of assets and liabilities by the judges and to establish a mechanism to enable investigation and follow-up action into complaints against judges.Asked about the move to set up a National Judicial Commission for appointment and transfer of judges, he said, it was still under consideration.

On the Bill relating to increasing the retirement age of High Court judges, he said the Bill providing for increasing the age of High Court judges from 62 to 65 years was examined by the Standing Committee and likely to be slated for discussion in Parliament in the monsoon session.It was aimed at retaining the High Court judges for three more years which would avoid occurrence of new vacancies on account of superannuation and result in their continuance to clear backlog of cases.

Asked about the progress of the ‘Vision Statement’ launched in October 2009 to release undertrial prisoners, he said with the cooperation of the States and the High Courts, the Centre was able to accomplish the objective and as on May 31, a total of 5,62,397 undertrials were released (on bail) and 77,940 discharged from the cases.He said he had written to the Chief Ministers of all the States commending the efforts of the State governments and the High Courts for achieving the objective.In the letter, Mr. Moily said “having been encouraged with the kind of performance, I would urge upon you to step up the programme which has received the highest acclaim from the citizens and is particularly focused on marginalised society. There is no doubt that with your continued interest in the programme, results will be accelerated.”

Mr. Moily wanted the States to provide video-conferencing facilities in district courts and jails to ensure that the delay in disposal of applications of undertials was reduced to a large extent.

http://www.hindu.com/2011/06/04/stories/2011060463731100.htm

The Judicial Standards and Accountability Bill, 2010

Supreme Court of India

 

PRS LEGISLATIVE REVIEW

The Judicial Standards and Accountability Bill tries to lay down enforceable standards of conduct for judges.  It also requires judges to declare details of their and their family members’ assets and liabilities.  Importantly, it creates mechanisms to allow any person to complain against judges on grounds of misbehaviour or incapacity.

Highlights of the Bill

  • The Judicial Standards and Accountability Bill, 2010 requires judges to declare their assets, lays down judicial standards, and establishes processes for removal of judges of the Supreme Court and High Courts.
  • Judges will be required to declare their assets and liabilities, and also that of their spouse and children.
  • The Bill establishes the National Judicial Oversight Committee, the Complaints Scrutiny Panel and an investigation committee.  Any person can make a complaint against a judge to the Oversight Committee on grounds of ‘misbehaviour’.
  • A motion for removal of a judge on grounds of misbehaviour can also be moved in Parliament.  Such a motion will be referred for further inquiry to the Oversight Committee.
  • Complaints and inquiries against judges will be confidential and frivolous complaints will be penalised.
  • The Oversight Committee may issue advisories or warnings to judges, and also recommend their removal to the President.

Key Issues and Analysis

  • The key issue is whether the balance between independence and accountability is maintained by the proposed mechanism in the Bill.  The Oversight Committee has non-judicial members which might impinge on the independence of the judiciary.
  • The Bill penalises anyone who breaches the confidentiality of complaints.  It is questionable whether a penalty is needed for a frivolous complaint that remains confidential.
  • The Scrutiny Panel has judges from the same High Court.  This is different from the in-house procedure of the Supreme Court.
  • The Oversight Committee has non-judicial members.  The procedure of the Committee is not an in-house procedure of the judiciary.  It is not clear whether the power of the Oversight Committee to impose minor measures is constitutionally valid.
  • The Bill does not mention whether a judge has the right to appeal to the Supreme Court against an order of removal issued by the President after Parliament finds him guilty of ‘misbehaviour’.

PART A: HIGHLIGHTS OF THE BILL1

Context

The Constitution provides that judges of the High Courts and Supreme Court can be removed only by Parliament on the basis of a motion in either the Lok Sabha or the Rajya Sabha.2 The existing procedure for investigation into allegations of misbehaviour or incapacity of Supreme Court and High Court judges is specified in the Judges (Inquiry) Act, 1968. Currently two cases are under investigation: Justice Soumitra Sen of the Calcutta High Court, and Justice Dinakaran of the Sikkim High Court (earlier in the Karnataka High Court). Before this the only case under this process was that of Justice Ramaswamy, but Parliament did not pass the motion to remove him.

In recent years, a number of allegations of corruption against members of the higher judiciary have been made.3 In 1997, the Supreme Court adopted resolutions on (a) Restatement of Values of Judicial Life, and (b) In-house procedure within the judiciary.4 A concept paper on a National Judicial Commission was prepared by the National Advisory Council in 2005.5 The Judges (Inquiry) Bill, 2005 was drafted by the government and examined by the Law Commission. The revised Judges (Inquiry) Bill, 2006 incorporated almost all the Law Commission’s recommendations, and sought to establish a National Judicial Council (NJC). That Bill has however lapsed now.

Key Features

The 2010 Bill replaces the Judges (Inquiry) Act, 1968. It seeks to: (a) create enforceable standards for the conduct of judges of High Courts and the Supreme Court, (b) change the existing mechanism for investigation into allegations of misbehaviour or incapacity of judges of High Courts and the Supreme Court, (c) change the process of removal of judges, (d) enable minor disciplinary measures to be taken against judges, and (e) require the declaration of assets of judges.

Judicial Standards

  • The Bill requires judges to follow certain standards of conduct. Complaints against judges can be made on grounds of non-compliance with these standards or certain activities such as corruption, wilful abuse of power or persistent failure to perform duties.
  • Some activities prohibited under the Bill are: (a) close association with individual members of the Bar who practise in the same court, (b) allowing family members who are members of the Bar to use the judge’s residence for professional work, (c) hearing or deciding matters in which a member of the judge’s family or relative or friend is concerned, (d) entering into public debate on political matters or matters which the judge is likely to decide, and (e) engaging in trade or business and speculation in securities.

Investigation Authorities

The Bill establishes three bodies to investigate complaints against judges: the National Judicial Oversight Committee, the Complaints Scrutiny Panel and allows for the constitution of an investigation committee.

  • National Judicial Oversight Committee: will consist of a retired Chief Justice of India as the Chairperson, a judge of the Supreme Court, a Chief Justice of the High Court, the Attorney General for India, and an eminent person appointed by the President. The Oversight Committee shall have supervisory powers regarding investigation into complaints against judges, and also the power to impose minor measures.
  • Scrutiny Panel: will be constituted in the Supreme Court and every High Court. It shall consist of a former Chief Justice and two sitting judges of that court. The Panel shall conduct an initial investigation into the merits of a complaint made against a judge. It shall also have the power to report frivolous or vexatious complaints. Persons making frivolous or vexatious complaints can be penalised by rigorous imprisonment of up to five years and fine of up to five lakh rupees.
  • Investigation Committee: will be set up by Oversight Committee to enquire into complaints. The investigation committee will be set up if the Scrutiny Panel recommends that an inquiry should be carried out to investigate a complaint. The Bill does not specify the qualifications of members of the investigation committee, but leaves this to the discretion of the Oversight Committee.

Complaint and Reference Procedures

The Bill changes the complaint procedure existing in the Judges (Inquiry) Act, 1968. Currently, the removal process may only be initiated by a motion in Parliament. The Bill adds a process to permit any person to file a complaint. Any frivolous or vexatious complaint, if proved, carries a punishment. The proposed changes are given in Table1. Also see Figure 1 on page 6.

 

Table 1: Complaint procedure and authorities under the Bill and the Judges (Inquiry) Act, 1968
Topic Judges (Inquiry) Act, 1968 Judicial Standards and Accountability Bill, 2010
Persons allowed to file complaints Members of Parliament (motion presented in either House of Parliament). Members of Parliament or any other person.
Person to whom complaint has to be made Speaker of the Lok Sabha or the Chairman of the Rajya Sabha. Speaker/ Chairman (by Members of Parliament) 

National Judicial Oversight Committee (by persons other than Members of Parliament).

Subsequent procedure
  • The Speaker/ Chairman may set up a three member committee for investigation.
  • The Committee will consist of (a) one judge from the Supreme Court and one from among the Chief Justices of High Courts, and (b) a distinguished jurist.
  • The Committee shall prepare a report after concluding its investigation. The report shall be laid before both the Lok Sabha and the Rajya Sabha.
  • If the report finds that the charges against the judge are not proved, no further action will be taken.
  • If the charges framed are proved, the motion against the judge will be taken up for consideration.
  • If the motion is adopted by both houses of Parliament by two-thirds majority, the misbehaviour or incapacity of the judge is deemed to be proved.
  • If the complaint is made by Parliament, the Speaker/ Chairman will refer the matter to the Oversight Committee who will constitute an investigation committee. In other cases, the Oversight Committee refers the matter to the Scrutiny Panel within three months.
  • The Scrutiny Panel shall report to the Oversight Committee on whether there are sufficient grounds for proceeding against the judge. Report to be submitted in three months, may be extended by three months.
  • If the Scrutiny Panel reports that there are sufficient grounds for proceeding against the judge, the Oversight Committee shall set up an investigation committee to look into the complaint (Scrutiny Panel will not be involved if the matter is referred through Parliament). Inquiry has to be completed within six months. The investigation committee shall report its findings to the Oversight Committee.
  • If the Oversight Committee is satisfied that the charges have been proved, the Committee can (a) issue advisories or warnings, or (b) request the judge to resign voluntarily.
  • If the judge does not resign voluntarily, the Committee shall advise the President to proceed with the removal of the judge, and the President shall refer the matter to Parliament.
  • The judge may be removed if each House adopts the motion with two-thirds majority.
Sources: Judicial Standards and Accountability Bill, 2010; Judges (Inquiry) Act, 1968; PRS.

Confidentiality and Exemption from RTI

  • The Bill prohibits participants in investigations against a Judge from revealing any information regarding the investigation or the complaint without the written consent or direction of the Oversight Committee. The Bill imposes penalties on those violating the confidentiality provisions. Anyone violating these provisions may be imprisoned for up to one month, and may also be fined.
  • The Bill exempts documents and records of proceedings related to a complaint from the purview of the Right to Information Act, 2005. The reports of the investigation committee and the order of the Oversight Committee shall be made public.
  • Proceedings of the investigation committee will not be open to the public.

Disclosure of Assets and Liabilities

  • Judges will be required to declare their assets and liabilities, and also that of their spouse and dependent children. Such declaration has to take place within 30 days of the judge taking his oath to enter his office. In addition, every judge will have to file an annual report of his assets and liabilities. The assets and liabilities of the judge will be displayed on the website of the court to which he belongs.

PART B: KEY ISSUES AND ANALYSIS

There are four main issues with regard to the Bill: (i) the composition of the bodies established to judge judges; (ii) whether provisions on confidentiality and penalties for frivolous and vexatious complaints deter persons from complaining against judges; (iii) whether minor measures can be imposed by a body comprising of non-judicial members, and (iv) whether judges should be able to appeal against orders removing them.

Judging the Judges

Composition of authority tasked to remove judges

The key issue is to find a balance between holding judges accountable and maintaining the independence of the judiciary. The Standing Committee on Personnel, Public Grievances, Law and Justice6, and the Law Commission7 have examined these issues in light of the Judges (Inquiry) Bill, 2005 and 2006. The composition of the bodies established to judge the judges needs to reflect this balance.

The Judges (Inquiry) Bill, 2006 proposed a National Judicial Commission only of judges. The Law Commission report agreed with the composition of the Commission. The Standing Committee proposed that the Commission should be broad-based to represent members from the executive, legislature, and the Bar. They argued that if there was a problem regarding non-judicial members, an alternative mechanism should be set up. The alternative would be to have a broad-based committee to conduct preliminary investigations. Such an Empowered Committee should consist of members from the judiciary, executive, legislature and the Bar.6

The Oversight Committee in the Bill differs from the recommendations of the Standing Committee. It now consists of three judicial members and two non-judicial members. The two non-judicial members are the Attorney General (appointed by the executive), and an eminent person to be appointed by the President (executive’s nominee). There is no member of the legislature in any of the authorities proposed in the Bill.

Table 2 compares the composition of suggested judicial oversight bodies in India.

 

Table 2: Composition of Suggested Judicial Oversight Bodies in India
Judges (Inquiry) Bill, 2006 and Law Commission Standing Committee 2010 Bill
Composition
  • Chief Justice of India;
  • Two senior-most judges of the Supreme Court;
  • Two Chief Justices of High Courts.
Recommended a broad-based committee consisting of members from the executive, legislature, and the bar; or, 

The establishment of a broad-based empowered committee to conduct initial screening of complaints.

  • The National Oversight Committee has members from the judiciary and the executive;
  • The Scrutiny Panel doing initial screenings is composed entirely of judges;
  • The composition of the investigation committee is not known.
Sources: Judges (Inquiry) Bill, 2006; Standing Committee on Personnel, Public Grievances, Law and Justice; PRS.

The basic features of some judicial oversight bodies in other countries are summarised in Table 3.

 

Table 3: Judicial Oversight Bodies in Some Countries
Investigation Body Qualifications Authority to remove judges
England & Wales Judicial Appointments Commission & Ombudsman Lay person with no legal experience Legislature
Canada Two oversight commission members and appointee of Justice Minister Judges Legislature
United States Judicial Council Judges Judiciary & Legislature
France Oversight commission Judges, prosecutors, & three who are neither judges nor of the legislature Oversight commission
Germany Federal Constitutional Court Judges Federal Constitutional Court
South Africa Oversight Commission Ministers, legislators, lawyers, law professors, and judges Executive, after a resolution by two-thirds of the legislature

Sources: 195th Law Commission Report; US Court of Appeals; PRS.

Composition of Scrutiny Panel

The Bill provides that judges from the same High Court shall first scrutinise whether a complaint against a judge needs to be investigated. It does not provide a review mechanism by the Oversight Committee if the Scrutiny Panel decides that there is no merit in the complaint.

In 1997, the Supreme Court adopted a different in-house procedure for inquiring into complaints of misbehaviour against judges. It stated that the inquiry committee would consist of two Chief Justices of High Courts other than the High Court to which the judge belongs, and one other High Court judge.7 This procedure ensured that judges of the same High Court would not sit in inquiry against a judge. Table 4 compares the current in-house procedure and the procedure proposed in the Bill:

 

Table 4: Composition of committees under the Supreme Court’s 1997 Resolution and the Bill.
Supreme Court’s in-house procedure Bill
Judge of the High Court Two Chief Justices of High Courts other than the High Court to which the judge belongs, and one other High Court judge. Scrutiny Panel. Headed by a former Chief Justice of that High Court and two other sitting judges of that court.
Judge of the Supreme Court judge Three judges of the Supreme Court. Same as above.
Role Investigate and recommend penalties such as withdrawal of work, public censure, warnings, etc. Report to Oversight Committee whether further investigation is necessary.
Sources: 195th Report of the Law Commission of India; Judicial Standards and Accountability Bill, 2010; PRS.

The report of the Standing Committee on the Judges (Inquiry) Bill, 2006, had proposed a screening body with wider representation. It suggested that the body have representatives of the judiciary, legislature and the Bar. The major reasons it had given for the proposing this ‘Empowered Committee’ were: (a) it would be an impartial, wider representative body, (b) it would provide for the screening of complaints at an initial level; and (c) wider representation would ensure credibility and transparency.

Penalties for frivolous complaints

The Bill requires all complaints to be kept confidential. Any breach of confidentiality carries a penalty. In addition, a vexatious or frivolous complaint, if made in public, may also be penalised under the Contempt of Courts Act, 1971. These two safeguards protect a judge from defamation. However, judges cannot be defamed if complaints are kept confidential. Therefore, the need for an additional safeguard against frivolous complaints may be questionable.

The quantum of penalty is significantly higher than for other similar offences. The Contempt of Courts Act, 1971 provides for simple imprisonment for up to six months and a fine of up to Rs 2,000.8 The Judges (Inquiry) Bill, 2006 (and the Law Commission report) had proposed a maximum penalty of simple imprisonment of up to one year, and fine of up to Rs 25,000. The Bill imposes a penalty of imprisonment of up to five years, and fine of up to five lakh rupees.

Constitutional validity of minor measures

The Bill allows for minor measures to be imposed by the Oversight Committee in some cases. These are: (a) issuing advisories, or (b) warnings. The Supreme Court9 and the Law Commission7 upheld the constitutionality of minor measures in the context of oversight bodies composed entirely of the judiciary. The Law Commission viewed the imposition of minor measures as an in-house process. This would not be an encroachment by the executive or the legislature since such power is vested in ‘peers’ within the judiciary.”10

The Oversight Committee proposed in the Bill consists of members from the executive as well as the judiciary. It is therefore not clear whether this can be viewed as an in-house process and whether it violates the constitutional safeguards of the independence of the judiciary.

Right of a judge to appeal to Supreme Court against removal

In a 1993 judgement, the Supreme Court has held that a judge can seek ‘judicial review’ against an order of the President removing him.11 The Bill makes no mention of whether a judge who has been removed has a right to appeal to the Supreme Court. Therefore, based on this judgement, a judge will to have the right to appeal to the Supreme Court to review the order of removal passed by Parliament2. The Standing Committee had stated that there should not be any provision for appeal as the finality of a Presidential order should not be challenged.

Figure 1: Procedure of investigation into a complaint against a High Court or Supreme Court judge.

Judicial Standard Bill

Judicial Standard Bill

 

*Under the reference procedure, the final report of the Oversight Committee is submitted to the Speaker/ Chairman irrespective of the findings of the investigation committee.

Anirudh Burman  / Vivake Prasad
March 18, 2011

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