ABRAHAM THOMAS IN THE PIONEER
An attempt by Parliament to restrain judges from speaking against constitutional and statutory authorities in open court has provoked legal experts to question the legislature’s power to frame such a law.
Former judges and legal luminaries feel that the proposed move by a Parliamentary Standing Committee will violate the Constitution itself that bars Parliamentarians from deciding standards on judicial conduct, much less to even discuss about it. According to Article 121 in the Constitution, “No discussion shall take place in Parliament with respect to the conduct of any judge of the Supreme Court or of a High Court in the discharge of his duties.” Such power is available only at the time when the Parliament discusses a motion for removal of a judge as in the present case of Justice Soumitra Sen. Similar restriction applies to state legislatures under Article 211.
A similar bar prevails on Courts to inquire into proceedings inside the Parliament. It was a result of this bar, a five-judge bench of Supreme Court in 1998 granted exemption to the MPs involved in the JMM bribery case by considering the act of voting in Parliament to be part of proceedings in the House. In 2007, the question came up again in the cash-for-query case where the SC clarified that “irregularity of procedure” followed by Parliament cannot be questioned by Courts, except on the question of illegality or unconstitutionality of the action in question.
Former Chief Justice of India Justice VN Khare said, “There is a Code of Conduct for judges restraining them from speaking out their emotions or personal views in open court. It is not possible to regulate judges’ conduct by the legislature.” This is contained in the Full Court Resolution of May 7, 1997 titled Restatement of Judicial Values.
The report of the Parliamentary panel, while discussing the broad contours of the Judicial Standards and Accountability Bill 2010, said, “The Committee feels that there is a need to bring such behaviour of judges within the purview of the judicial standards. The Committee feels that Clause 3(2)(f) of the Bill should be expanded by specifically mentioning that judges should restrain themselves from making unwarranted comments against other constitutional or statutory bodies/institutions in open court while hearing cases.”
Clause 3(2)(f) of the Bill states: “a judge shall not enter into public debate or express his views in public on political matters or on matters which are pending or are likely to arise for judicial determination by him.” This is reproduction of the 1997 Resolution. Another former Chief Justice of India Justice JS Verma felt that there should be no fetters on judges making “fair comment”. Not talking in the context of the Parliamentary panel’s report alone, he said, “In a democracy everyone has a right to voice opinion. I do not know why there should be objection to any fair comment.” Again the use of the word “unwarranted” by the Parliamentary panel has a broad sweep which could be dangerous.
As a test, the former CJI suggested, “the judge must decide am I saying something that will help decide the merits of a case. Anything outside it should best be avoided.” He further said that judges in their judgments do pass observations that have no binding effect. “Every observation or comment is not to be seriously taken. The restraint in this regard should also be of the media against highlighting every such comment.”
Agreeing to the fact that of late some comments by judges was unfortunate and out of context, Justice Khare suggested that the way out is not the legislature setting terms for the judiciary. “Our sentiments cannot be regulated by legislation. There are times when the comments are made by judges in a lighter vein having no binding force. At best the restraint must be voluntary or any legislation may delegate this power to Chief Justice of India to regulate judges’ conduct.” To this view, senior advocate Jayant Bhushan added, “Hearing of a case involved arriving at a decision which involves debating and expressing tentative views. Such observations cannot be shut out as it amounts to gagging the judges.”
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