A Bill that facilitates displacement?


The foreword — to the Draft National Land Acquisition and Rehabilitation and Resettlement Bill 2011 — that says “urbanisation is inevitable” (I.p.1) signifies danger. The Bill, if enacted in its present form, is likely to worsen, and not stop, displacement of tribal, Dalit and other backward communities. The Bill states: “The issue of who acquires land is less important than the process of land acquisition, compensation for land acquired and R&R process, package and conditions … The objective is to make the process of land acquisition easy, transparent, and fair for both sides in each instance …”(p.1, emphasis added). But who acquires land is intrinsically connected to why it is acquired in the first place.

Land alienation, ownership and contradictions arising from it concern world political economy and external agencies that have been dictating conditions to the Indian government at the Centre and State level on policy matters in land reforms. Some of these terms and conditions reflect in the LARR Bill 2011 if one reads between the lines. A Policy Document of the World Bank, for instance (“India: Land Policies for Growth and Poverty Reduction,” Report No. 38298-IN, July 9, 2007, Agriculture and Rural Development Sector Unit, India Country Management Unit, South Asia Region) made a few recommendations for policy reform, which included, “eliminate restrictions on land markets.” Under this — “It will be desirable to (i) make leasing legal where it is currently prohibited…(ii) allow transferability of land by land reform beneficiaries at least through lease and explore options for making the gains from such reform permanent; (iii) drop restrictions on sale of land to non-agriculturists and subdivision which have little economic justification; and (iv) review legislation on compulsory land acquisition and, subject to the prevention of undesirable externalities, allow farmers or their representatives to negotiate with and if desired transfer land directly to investors rather than having to go through government and often receive only very limited compensation.”

It is a matter of serious concern that this Bill looks at R&R and land acquisition as “two sides of the same coin” and this is partly a result of the pressure built over the years by movements against big dams. This Bill facilitates acquiring land, including commons, presently in the hands of small and marginal farmers from tribal, SC and backward communities under the pretext of an unstated ‘public purpose’ for “infrastructure development” which may well accompany future FDI in food and agriculture, and several related developments linking the global market to India. In urban areas it is very clear that it is connected to real estate development in return for crumbs such as ‘housing for the urban poor’ schemes.

The government is fast-tracking into a future which facilitates transfer of land into the hands of the urban elite. Even if there is a caveat placed on R&R in case of acquisition up to 100 acres, there is no mechanism to stop the rich from taking an easy way out, opting for say 90 acres. Does that not call for R&R?

While one good point in the Bill is that “under no circumstances” multicropped, irrigated land (sic) be acquired, what if a multicropped land or two came within the 100 acres identified for the larger acquisition? The definition of “multi-crop” is unclear. Is it a number of crops grown in a single season or in alternate seasons by rotation?

As for the SIA (Social Impact Assessment), there is mention of “Two non-official social scientists, two experts in the area relating to the project.” Women, senior citizens and children are not part of this exercise. The affected people are not to select this group. What is the guarantee that the group will not favour those who wish to acquire land? Most ‘experts’ come from sections not directly displaced/dispossessed. We are unwilling to have a forum with the poor as their own representatives on decisions affecting them.

The understanding of “minimum” displacement, “minimum disturbance to infrastructure, ecology and minimum adverse impact on individuals affected” is highly subjective and left open-ended without defining the “minimum” displacement (in forests, for instance; or damage to rivers, for instance — how much is ‘minimum”?)

As for the public hearing on the notification issued for acquisition, why not have a pre-notification, prior, on “intent” to acquire land, instead, where a gram sabha, or committees in urban slums, for instance, can take a collective decision for or against acquisition?

What are the implications of this Bill for the Polavaram dam? It has a lot that will actually make the dam (if the Bill becomes an Act) illegal and invalid on most points mentioned therein on land acquisition. But a deeper reading of the Bill makes it clear that much of it will actually not help stall the dam works in any major way. The onus will be on people to enter into litigation to reclaim their land from the government if the Bill is passed. The provision of “One acre of land to each family in the command area if land is acquired for irrigation project” seems foolhardy if it plans to cover entire populations displaced by irrigation projects (in Polavaram alone, the figure is nearly three lakh people). Where is this kind of land available in the proposed command area?

The first point on which the Polavaram-dislocated (who lost land, not necessarily physically displaced) can be one up on the government is within the clause “Safeguards against indiscriminate acquisition.” This says — “Land to be returned to original owner if not used in 5 years for the purpose for which it is acquired.” It was in 2005 that most of the land acquisition for the Polavaram dam started and the only ‘work’ done is the digging of canals. So, will the government of Andhra Pradesh face legal action if this Bill becomes an Act?

So far as tribal communities are concerned, a point in their favour under “Minimum R&R Entitlements Special Provisions for ST’s” makes space for “Preference in relocation and resettlement in area in same compact block.” In the case of the Polavaram dam, no care was taken to do so, in any of the three R&R colonies (of which only two are under construction). And here we are talking of 300 villages to be submerged, and where are those 300 tribal villages to be resettled in ‘compact’ colonies? Where is the land for that space? If tribal land is to be acquired for displaced tribal communities, where will the R&R displaced tribal people be rehabilitated? In the case of Polavaram, the non-tribals illegally owning land in tribal areas were compensated with high amounts (Rs.1,50,000 an acre; minimum Rs.80,000 per acre). There is no provision in the Bill for any system to check such instances. In fact the Bill does not seem to have taken into consideration all these past injustices nor does it have any clause to correct those injustices.

How is land perceived? What are rivers perceived as? For a fisherman the river is his notional ‘land,’ in livelihood and cultural terms. Faced with numerous massive irrigation (multi-purpose) projects on the anvil, ‘acquisition of river’ (and forests) is not considered a case for R&R. Though one does not even remotely suggest a “River acquisition Bill.” Let’s hope that such a day will not come.

How is economic value generated for the communities? How does the Bill compute the ‘economic worth’ of tribal, Dalit or BC communities, women’s work, to be dispossessed of a permanent asset — land/river? “Rs.3000 pm for 12 months; Rs. 2000 pm per family for 20 years.”

The Bill is making cosmetic changes to the 1894 notion of an ‘eminent domain’ treating citizens as beneficiaries of private, or state charity.

(The writer is a postdoctoral Fellow at IIT-Madras and independent journalist. She is completing a book on Polavaram.)



Enactment of a new legislation in place of Benami Transactions (Prohibition) Act, 1988 – Introduction of the Benami Transactions (Prohibition ) Bill, 2011

The Union Cabinet today approved the proposal for the enactment of a new legislation in the form of the Benami Transactions (Prohibition) Bill, 2011 to replace the existing Benami Transactions (Prohibition) Act, 1988 and for its introduction in Parliament. During the process of formulating the rules for implementing certain provisions of the present Act which was passed in 1988, it was found that owing to infirmities in the legislation, formulation of the rules would not be possible without a comprehensive legislation by repealing the Act. The Bill contains elaborate provisions dealing with the definition of benami transaction and benami property, prohibited benami transactions, consequences of entering into a prohibited benami transaction and the procedure for implementing the benami law. Properties held by a coparcener in a Hindu undivided family and property held by a person in fiduciary capacity are excluded from the definition of benami transaction. Further, properties acquired by an individual in the name of spouse, brother or sister or any lineal ascendant or descendant are benami transactions which are not prohibited. Consequently, they are not subject to penal provisions.

Where any person enters into a benami transaction in order to defeat the provisions of any law or to avoid payment of statutory dues or to avoid payment to creditors, the beneficial owner, benamidar and any other person who abets or induces any person to enter into such benami transaction, shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to two years and shall also be liable to a fine. A benami property shall also be liable for confiscation by the Adjudicating Authority after the person concerned has been given due opportunity of being heard.


The major infirmities of the existing Act were:

  1. Powers of a civil court have to be conferred on the authorities under the Act.
  2. Specific provisions have to be introduced for vesting of confiscated property with the Central Government.
  3. An appropriate appellate structure has to be defined, while barring jurisdiction of a civil court against an action taken by the authorities under the Act.
  4. Matters of procedure relating to its administration, notice of hearing to parties concerned, service of notice and orders, powers of the competent authority relating to gathering of evidence etc are to be provided.
  5. The word ‘wife’ needs to be replaced with the word ‘spouse’ and property purchased in the name of certain other family members is to be allowed under the Act.

The Protection of Women Against Sexual Harassment at Work Place Bill, 2010


The Bill lays down the definition of sexual harassment and seeks to provide a mechanism for redressing complaints.  It provides for the constitution of an ‘Internal Complaints Committee’ at the work place and a ‘Local Complaints Committee’ at the district and block levels.  A District Officer (District Collector or Deputy Collector), shall be responsible for facilitating and monitoring the activities under the Act.

Highlights of the Bill

  • The Bill defines sexual harassment at the work place and creates a mechanism for redressal of complaints.  It also provides safeguards against false or malicious charges.
  • Every employer is required to constitute an Internal Complaints Committee at each office or branch with 10 or more employees.  The District Officer is required to constitute a Local Complaints Committee at each district, and if required at the block level.
  • The Complaints Committees have the powers of civil courts for gathering evidence.
  • The Complaints Committees are required to provide for conciliation before initiating an inquiry, if requested by the complainant.
  • Penalties have been prescribed for employers.  Non-compliance with the provisions of the Act shall be punishable with a fine of up to Rs 50,000.  Repeated violations may lead to higher penalties and cancellation of licence or registration to conduct business.

Key Issues and Analysis

  • There could be feasibility issues in establishing an Internal Complaints Committee at every branch or office with 10 or more employees.
  • The Internal Complaints Committee has been given the powers of a civil court.  However, it does not require members with a legal background nor are there any provisions for legal training.
  • The Bill provides for action against the complainant in case of a false or malicious complaint.  This could deter victims from filing complaints.
  • Two different bodies are called ‘Local Complaints Committee’.  The Bill does not clearly demarcate the jurisdiction, composition and functions of these Committees.
  • Cases of sexual harassment of domestic workers have been specifically excluded from the purview of the Bill.
  • Unlike sexual harassment legislation in many other countries, this Bill does not provide protection to men.



India has signed and ratified the Convention on the Elimination of all Forms of Discrimination against Women (CEDAW). However, India does not have a specific law to address the issue of sexual harassment of women at the place of work. Currently, the Indian Penal Code (IPC) covers criminal acts that outrage or insult the ‘modesty’ of women. It does not cover situations which could create a hostile or difficult environment for women at the work place.

In 1997 as part of the Vishaka judgment, the Supreme Court drew upon the CEDAW and laid down specific guidelines on the prevention of sexual harassment of women at the work place.1 The Vishaka guidelines defined sexual harassment and codified preventive measures and redressal mechanisms to be undertaken by employers.

A draft Bill was circulated by the Ministry of Women and Child Development for public feedback in 2007. The current Bill establishes a framework to be followed by all employers to address the issue of sexual harassment.

Key Features

The Bill lays down the definition of sexual harassment and seeks to provide a mechanism for redressing complaints. It provides for the constitution of an ‘Internal Complaints Committee’ at the work place and a ‘Local Complaints Committee’ at the district and block levels. A District Officer (District Collector or Deputy Collector), shall be responsible for facilitating and monitoring the activities under the Act.

Prohibition of Sexual Harassment at the Work Place

  • Sexual harassment is defined to include unwelcome sexually determined behaviour such as physical contact, request for sexual favours, sexually coloured remarks, screening of pornography, or any other conduct of sexual nature.
  • The Bill prohibits sexual harassment at the work place which may include promise of preferential treatment, threat of detrimental treatment, hostile work environment, or humiliating conduct constituting health and safety problems.
  • The Bill defines a work place to include all organizations, and any place visited by an employee during the course of work. It covers every woman at the work place (whether employed or not) except a domestic worker working at home. It defines employer as the person responsible for the management, supervision and control of the work place.

Duties of the employer

  • The Bill assigns certain duties to each employer. These include (a) providing a safe working environment; (b) constituting an Internal Complaints Committee and conspicuously displaying the order constituting the Committee; (c) undertaking workshops and training programmes at regular intervals for sensitizing employees; (d) providing assistance during an inquiry; and (e) initiating action against the perpetrator.

Structure for redressal of complaints

  • Every employer is required to constitute an ‘Internal Complaints Committee’ at all offices and branches with staff strength of 10 or more employees. Members of the committee shall include a senior woman employee, two or more employees and one member from an NGO committed to the cause of women. A member of this Committee may not engage in any paid employment outside the duties of the office.
  • A ‘Local Complaints Committee’ is required to be constituted in every district. An additional ‘Local Complaints Committee’ shall also be constituted at the block level to address complaints in situations where the complainant does not have recourse to an Internal Complaints Committee or where the complaint is against the employer himself.
  • The ‘Local Complaints Committee’, to be constituted by the District Officer, shall include an eminent woman as the Chairperson, a woman working in the area, two members from an NGO committed to the cause of women, and a Protection Officer appointed under the Protection of Women from Domestic Violence Act, 2005.
  • At least 50 percent of the nominated members in any Internal or Local Committee must be women.

Procedure for filing complaints and initiating inquiry

  • An aggrieved woman may complain to the Internal Committee. In the absence of such a committee, she may file a complaint with the Local Committee. All complaints must be in writing. The complainant may also pursue other remedies, including filing a criminal complaint.
  • The Committee shall provide for conciliation if requested by the complainant. Otherwise, the Committee shall initiate an inquiry.

Penalties and appeal

  • If the allegation is proved, the Committee shall recommend penalties for sexual harassment as per service rules applicable or the Rules under the Act. In addition, it may provide for monetary compensation to the complainant.
  • If the allegation is proved to be false or malicious, the Committee may recommend action against the complainant. However, action may not be taken against a complainant merely on the inability to substantiate a complaint or provide adequate proof.
  • Appeals against the recommendations of either Committee shall lie with the courts.
  • Penalties have also been prescribed for employers who fail to comply with the provisions of the Act. Non-compliance shall be punishable with a fine of up to Rs 50,000. Repeated violations may lead to higher penalties and cancellation of licence or registration required for carrying on the business.


Feasibility issues in the composition of the Internal Complaints Committee

Constitution of an internal committee at each administrative unit

The Bill requires that every office or branch with 10 or more employees constitute an Internal Complaints Committee. This requirement differs from the one proposed in the draft Bill circulated by the National Commission for Women (NCW) in 2010.2 The NCW draft Bill prescribed that if units of the work place are located at different places, an Internal Committee shall be constituted ‘as far as practicable’ at all administrative units or offices. A similar requirement was laid down in the 2007 draft Bill circulated by the Ministry of Women and Child Development.3

NGO representation in Internal Committees

Each Internal Committee requires membership from an NGO or association committed to the cause of women. This implies that every unit in the country with 10 or more employees needs to have one such person in the Committee. As per the Economic Census 2005, there are at least six lakh establishments that employ 10 or more persons.4 There is no public data on the number of NGO personnel ‘committed to the cause of women’. There could be difficulties in implementation if sufficient number of such NGO personnel is not available.

Bar on engagement in additional paid employment

No member of the Internal Committee is allowed to engage in any paid employment outside the duties of her office. This implies that even the external person in the Committee (who is with an NGO) may not hold any other part-time employment. It is not clear why this condition has been prescribed.

Powers of a civil court

The Internal Complaints Committee has been given powers of a civil court for summoning, discovery and production of documents etc. The composition of the Internal Committee does not require any member to have a legal background. Moreover, the Bill does not specify any requirement of legal training to the Committee for fulfilling these duties. This provision differs from that of the Local Complaints Committee, in which at least one member has to ‘preferably’ have a background in law or legal knowledge.

Ambiguous guidelines for the constitution of the Local Complaints Committee

Two different bodies are called ‘Local Complaints Committee.’ The Bill provides that every District Officer shall constitute a Local Complaints Committee in the district. It also prescribes that an additional Local Complaints Committee shall be constituted at the block level to address complaints in certain cases.

The jurisdiction and functions of these committees have not been delineated. It is also unclear whether the block level committees are permanent committees or temporary ad hoc committees constituted for dealing with specific cases.

Availability of Protection Officers

The Bill prescribes that a Protection Officer (PO), appointed under the Domestic Violence Act, 2005, shall be a member of the Local Complaints Committee. These Local Committees shall be established at the district level and may also be set up at the block level.

There is wide variation across states in the number of POs appointed per district.5 For instance, Maharashtra has appointed an average of 98 POs per district. Bihar, on the other hand, has appointed one PO for every two districts. This could lead to unavailability of POs in some areas for appointment to the Local Complaints Committees.

Scope for misuse of some provisions

Punishment for false or malicious complaints

The Bill provides that in case a committee arrives at a conclusion that the allegation was false or malicious, it may recommend that action be taken against the woman who made the complaint. The clause also provides that mere inability to substantiate a complaint or provide adequate proof need not attract action against the complainant.

Though there may be merit in providing safeguards against malicious complaints, this clause penalises even false complaints (which may not be malicious). This could deter women from filing complaints. Recent Bills such as the Public Interest Disclosure Bill, 2010 (commonly known as the Whistleblower’s Bill), penalise only those complaints that are mala fidely and knowingly false.6 The National Advisory Council (NAC) has recommended that the entire clause be removed as it might deter victims from seeking protection of the proposed legislation.7

Exclusion of domestic workers

The definition of ‘employee’ specifically excludes ‘domestic workers working at home’. The draft Bill circulated by the Ministry in 20073 and that circulated by the NCW in 2010,2 both included this category of employees in the definition.

The NAC recommendedthat the Bill should be applicable to domestic workers as these employees, ‘especially live-in workers, are prone to sexual harassment and abuse, without access to any complaint mechanism or remedial measures.’7 However, the government stated that ‘it may be difficult to enforce the provisions of the Bill within the privacy of homes and it may be more practical for them to take recourse to provisions under criminal law.’8

International experience

Sexual harassment is a form of illegal employment discrimination in many developed countries including the US, UK and the European Union countries.9 In these domains, the definition of sexual harassment includes employer-employee relationship as well as a hostile work environment. This is similar to the current Bill. However, those laws differ in one important aspect, in that they are gender neutral. This Bill provides protection only to women, and not to men.


[1]. Vishaka and others V. State of Rajasthan and others [1997 (6) SCC 241]

[2]. Revised Draft Bill, ‘The Prohibition of Sexual Harassment of Women at Workplace Bill, 2010’, National Commission for Women, http://ncw.nic.in/PDFFiles/sexualharassmentatworkplacebill2005_Revised.pdf

[3]. Draft Bill, ‘The Protection of Women against Sexual Harassment at Workplace Bill, 2007’, Ministry of Women and Child Development, http://wcd.nic.in/protshbill2007.htm

[4]. 5th Economic Census (2005), Ministry of Statistics and Programme Implementation, http://www.mospi.gov.in/index_6june08.htm

[5]. ‘Agenda No. 7 Review of implementation of Protection of Women from Domestic Violence Act, 2005’, Ministry of Women and Child Development, June 16, 2010, http://wcd.nic.in/agenda16062010/agenda_16062010_item7.pdf

[6]. Clause 16 of The Public Interest Disclosure and Protection to Persons Making the Disclosures Bill, 2010

[7]. Press release, National Advisory Council, January 10, 2011, http://nac.nic.in/press_releases/10_january_2011.pdf

[8]. Rajya Sabha unstarred Question 3706, answered on December 13, 2010

[9]. The Civil Rights Act of 1964, United States;  Sex Discrimination Act (1975) and Employment Rights Act (1996), United Kingdom;  Sexual Harassment in the Workplace in EU Member States, Government of Ireland, 2004

Prepared by:

Tonusree Basu  Rohit Kumar

DISCLAIMER: This document is being furnished to you for your information.  You may choose to reproduce or redistribute this report for non-commercial purposes in part or in full to any other person with due acknowledgement of PRS Legislative Research (“PRS”).  The opinions expressed herein are entirely those of the author(s).  PRS makes every effort to use reliable and comprehensive information, but PRS does not represent that the contents of the report are accurate or complete.  PRS is an independent, not-for-profit group.  This document has been prepared without regard to the objectives or opinions of those who may receive it.


sexual harassment bill.pdf  Bill Text  (293.01 KB)
Bill Summary. Sexual Harassment.pdf  PRS Bill Summary  (70.89 KB)
Legislative Brief - Sexual Harassment - 20May11.pdf  Legislative Brief  (465.31 KB)
Vishaka.pdf  Vishaka Judgement  (36.38 KB)
draft_sexual_harassment_bill.pdf  Draft of 2007 Bill  (99.91 KB)

Related news articles

Bill on sexual harassment referred to parliamentary panel, DNA, Jan 16, 2011
NAC frowns on bill blow to maids, Telegraph, Jan 11, 2011
NAC for covering domestic workers in anti-harassment bill, Deccan Herald, Jan 10, 2011
Bill to prevent workplace sexual harassment tabled, Hindu, Dec 08, 2010
Sexual harassment bill tabled in Lok Sabha, DNA, Dec 08, 2010
Bill on sexual harassment at workplace introduced in Lok Sabha, Hindu, Dec 07, 2010

The Judicial Standards and Accountability Bill, 2010

A representation of the Lion Capital of Ashoka...

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Bill Summary

  • The Judicial Standards and Accountability Bill, 2010 was introduced in the Lok Sabha on December 1, 2010. The Bill was introduced by the Shri M. Veerappa Moily, the Minister of Law and Justice.
  • The Bill seeks to (a) lay down judicial standards, (b) provide for the accountability of judges, and (c) establish mechanisms for investigating individual complaints for misbehaviour or incapacity of a judge of the Supreme Court or High Courts. It also provides a mechanism for the removal of judges.
  • The procedure of removal of judges is presently regulated by the Judges (Inquiry) Act, 1968. The Bill seeks to repeal the Act.
  • The Bill requires judges to practise universally accepted values of judicial life. These include a prohibition on: (a) close association with individual members of the Bar who practise in the same court as the judge, (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.
  • Judges will also be required to declare their assets and liabilities, and also that of their spouse and children. Such declaration has to take place within 30 days of the judge taking his oath to enter his office. Every judge will also 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.
  • The Bill establishes two authorities to investigate complaints against judges. The Two authorities are:
    1. National Judicial Oversight Committee; and
    2. Scrutiny Panel.
  • Initial complaints will be made to the Oversight Committee, and they will be referred to the Scrutiny Panel.
  • A 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. If the Scrutiny Panel feels there are sufficient grounds for proceeding against the judge, it shall report on its findings to the Oversight Committee. If it finds that the complaint is frivolous, or that there not sufficient grounds for inquiring against into the complaint, it shall submit a report to the Oversight Committee giving its findings for not proceeding with the complaint.
  • Frivolous or vexatious complaints may be penalised by the Oversight Committee.
  • The Oversight Committee will consist a retired Chief Justice of India as the Chairperson, a judge of the Supreme Court nominated by the sitting Chief Justice of India, a Chief Justice of the High Court, the Attorney General for India, and an eminent person appointed by the President.
  • If the Scrutiny Panel recommends investigation into a complaint against a judge, the Oversight Committee will constitute an investigation committee to investigate into the complaint. The inquiry committee will consist of not more than three members. It will have some powers of a civil court and also the power to seize documents and keep them in its custody.
  • The investigation committee will frame definite charges against the judge and shall communicate the same to the judge. The judge shall be given an opportunity to present his case, but if he/ she chooses not be heard, the proceedings may be heard without him present.
  • If the charges against a judge are proved, the Oversight Committee may recommend that judicial work shall not be assigned to the judge. It may also issue advisories and warnings if it feels that the charges proved do not warrant the removal of the judge. If the Committee feels that the charges proved merit the removal of the judge, it shall (a) request the judge to resign voluntarily, and if he fails to do so, (b) advise the president to proceed with the removal of the judge. In such a case, the President shall refer the matter to Parliament.
  • A motion for removal of a judge can also be introduced in Parliament by members of Parliament. In such a case, the Speaker or the Chairman can either admit the notice, or refuse to admit it. If the notice is admitted, the matter shall be referred to the Oversight Committee for inquiry.
  • 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.

Source: http://prsindia.org/index.php?name=Sections&action=bill_details&id=6&bill_id=1399&category=46&parent_category=1


Judicial standard and accountibility bill, 2010

Related Articles


Ensuring judicial accountability

Sansad Bhavan, parliament building of India.

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Provision needed for judges’ premature retirement


Law Minister Veerappa Moily appears to be keen on judicial reforms. He has taken several initiatives, the latest being the Judicial Standards and Accountability Bill, 2010, introduced in the Lok Sabha on December 1 amidst din and noise. The Bill seeks to provide for a mechanism to deal with complaints of the public against judges, give legal shape to the Reinstatement of Values of Judicial Life adopted by the Supreme Court in 1997, make it obligatory for judges to declare their assets and liabilities after assuming office and whenever new assets are acquired, and to replace the Judges (Inquiry) Act, 1968, without affecting the right of the members of Parliament to initiate action for the removal of judges on the ground of misbehaviour or incapacity.

The Bill contemplates constitution of a “complaints scrutiny panel” in the Supreme Court and in every High Court to scrutinise the complaints and refer such of them as need to be enquired into by the Oversight Committee consisting of a retired Chief Justice of India (Chairman), a judge of the Supreme Court, the Chief Justice of a High Court, the Attorney-General and an eminent person nominated by the President (Members). The Oversight Committee would constitute an investigation committee to go into the complaints and thereafter hold an enquiry against the judge concerned, giving him a reasonable opportunity to defend himself. If the charges proved do not warrant removal of the judge, the Oversight Committee may issue advisories or warnings. If it notices commission of any offence by a judge, prima facie, it may recommend his or her prosecution. If the charges proved are serious, warranting removal of the judge, it would make a request to the judge to voluntarily resign, failing which it would advise the President to make a reference to Parliament for the removal of the judge under Article. 124(4).

Removal of a judge can take place only after an address by each House of Parliament supported by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of the House present and voting.

The Bill is a step in the right direction. It has some welcome features such as providing for a transparent mechanism for scrutiny and an inquiry into complaints against judges, requiring declaration of assets and liabilities by them and for the exhibition of information on the website of the court concerned, enumerating judicial standards which every judge shall practice, including not permitting any member of his family to appear before him or to use his residence or other facilities provided to him for professional work, etc.

The definition of “misbehaviour” to include not only corruption or lack of integrity but also failure to furnish the declaration of assets and liabilities is significant. The question is: are these provisions enough to ensure accountability. The real problem is not about investigation of or an inquiry into charges of judicial misbehaviour by an impartial committee, but the uncertainty of impeachment by Parliament as it happened in the case of Justice V. Ramaswami, Judge, Supreme Court. His misbehaviour was established in an open and transparent inquiry conducted by a committee with a sitting judge of the Supreme Court as Chairman and Chief Justice of a High Court and a retired judge of the Supreme Court as members. It was expected that Parliament would show due deference to the findings given by such a high-powered committee and give effect to them.

Somnath Chatterjee’s autobiography, “Keeping the Faith”, narrates how the then ruling party aborted the motion of impeachment. Even the judges of the Supreme Court were not unanimous on his continuing to discharge judicial duties while the inquiry was going on. Chief Justice Sabyasachi Mukherjee pronounced an order in open court stating that he would not assign work to Justice Ramaswami till he was cleared of the charges in the inquiry. Justice Ranganath Misra, his successor, constituted a committee of three judges to consider whether the judge could be allowed to function, notwithstanding the inquiry. The committee opined that there was no provision of law in terms of which he could be prevented from discharing his judicial duties. As a result, the judge was allowed to resume work.

Shortly thereafter, Justice K.N. Singh became the Chief Justice of India (CJI). As President of the Supreme Court Bar Association, I requested him not to assign work to the judge. He said that his tenure was very brief (about 18 days) and I should approach his successor. When I approached Chief Justice M.H. Kania, after consulting a few senior advocates, he passed an order stating that if any lawyer appearing in a case raised objections, Justice V. Ramaswami would not hear his case.

The Sub-Committee on Judicial Accountability and the Supreme Court Bar Association filed writ petitions in the Supreme Court, inter alia, praying for a direction that no work should be assigned to Justice V. Ramaswami. A Constitution Bench rejected the prayer, observing that it was for the CJI to decide whether to assign work to the judge or not. The Constitution did not contemplate any such interim direction being given during the inquiry into the alleged misbehaviour of a judge. The Bench hoped that the learned judge would be guided by the advice of the CJI as a matter of convention unless he himself decided as an act of propriety to abstain from discharging judicial functions during the inquiry.

It is possible to suspend a judge facing an inquiry into charges of misbehaviour invoking Section 16 of the General Clauses Act 1897, read with Section 21. The President of India can suspend a judge facing such an inquiry in consultation with the CJI and the collegium. So far, no judge facing an inquiry under the Judges (Inquiry) Act, 1968, has been placed under suspension. It is advisable to insert a provision in the Bill for the suspension of a judge and payment of some subsistence allowance during the period of suspension.

It is high time to consider whether the removal of judges should depend on the vote in Parliament. The perception of corruption by a large number of members of Parliament is likely to be different from the perception of the chairman and members of the inquiry committee or the Oversight Committee. The MPs who notice large-scale corruption right under their nose may or may not appreciate that the misbehaviour of a judge found by the committee warrants his removal. In the prevailing circumstances, is Parliament best suited to take a final view on judges’ misbehaviour? In any event, so long as impeachment is uncertain, it cannot be a deterrent.

Irremovability tends to encourage corruption, indiscipline and irresponsibility. It is not easy to proceed against a judge under the Prevention of Corruption Act either. In K. Veeraswamy’s case, the Supreme Court declared that no criminal case could be registered against a judge unless the CJI was consulted in the matter. This is in addition to the requirement of sanction for prosecution in Section 19 of the Prevention of Corruption Act.

There have been instances where Chief Justices declined to allow prosecution of judges alleged to be corrupt. It is, therefore, necessary to find another way out to get rid of the black sheep and save the judiciary from corruption. It is desirable to make a provision in the Constitution for premature retirement of judges of doubtful integrity at any time without prescribing any minimum qualifying service on the recommendation of the collegium. The problem of judicial accountability will be minimal if proper persons are appointed. To have persons of ability and integrity, the post of a judge should be made attractive to leading and deserving members of the Bar. This will help in ensuring justice of high quality. The Bill is good, but inadequate to solve the problems of judicial accountability.

The writer is a senior advocate, Supreme Court of India.


Protection of Women against Sexual Harassment at Workplace Bill, 2010 approved by Cabinet

The Union Cabinet today approved the introduction of the Protection of Women against Sexual Harassment at Workplace Bill, 2010 in the Parliament to ensure a safe environment for women at work places, both in public and private sectors whether organised or unorganized. The measure will help in achieving gender empowerment and equality.

The proposed Bill, if enacted, will ensure that women are protected against sexual harassment at all the work places, be it in public or private. This will contribute to realisation of their right to gender equality, life and liberty and equality in working conditions everywhere. The sense of security at the workplace will improve women’s participation in work, resulting in their economic empowerment and inclusive growth.

Salient features of the Bill are as follows:

The Bill proposes a definition of sexual harassment, which is as laid down by the Hon’ble Supreme Court in Vishaka v. State of Rajasthan (1997). Additionally it recognises the promise or threat to a woman’s employment prospects or creation of hostile work environment as ‘sexual harassment’ at workplace and expressly seeks to prohibit such acts.

The Bill provides protection not only to women who are employed but also to any woman who enters the workplace as a client, customer, apprentice, and daily wageworker or in ad-hoc capacity. Students, research scholars in colleges/university and patients in hospitals have also been covered. Further, the Bill seeks to cover workplaces in the unorganised sectors.

The Bill provides for an effective complaints and redressal mechanism. Under the proposed Bill, every employer is required to constitute an Internal Complaints Committee. Since a large number of the establishments (41.2 million out of 41.83 million as per Economic Census, 2005) in our country have less than 10 workers for whom it may not be feasible to set up an Internal Complaints Committee (ICC), the Bill provides for setting up of Local Complaints Committee (LCC) to be constituted by the designated District Officer at the district or sub-district levels, depending upon the need. This twin mechanism would ensure that women in any workplace, irrespective of its size or nature, have access to a redressal mechanism. The LCCs will enquire into the complaints of sexual harassment and recommend action to the employer or District Officer.

Employers who fail to comply with the provisions of the proposed Bill will be punishable with a fine which may extend to ` 50,000.

Since there is a possibility that during the pendency of the enquiry the woman may be subject to threat and aggression, she has been given the option to seek interim relief in the form of transfer either of her own or the respondent or seek leave from work.

The Complaint Committees are required to complete the enquiry within 90 days and a period of 60 days has been given to the employer/District Officer for implementation of the recommendations of the Committee.

The Bill provides for safeguards in case of false or malicious complaint of sexual harassment. However, mere inability to substantiate the complaint or provide adequate proof would not make the complainant liable for punishment.

Implementation of the Bill will be the responsibility of the Central Government in case of its own undertakings/establishments and of the State Governments in respect of every workplace established, owned, controlled or wholly or substantially financed by it as well as of private sector establishments falling within their territory. Besides, the State and Central Governments will oversee implementation as the proposed Bill casts a duty on the Employers to include a Report on the number of cases filed and disposed of in their Annual Report. Organizations, which do not prepare Annual Reports, would forward this information to the District Officer.

Through this implementation mechanism, every employer has the primary duty to implement the provisions of law within his/her establishment while the State and Central Governments have been made responsible for overseeing and ensuring overall implementation of the law. The Governments will also be responsible for maintaining data on the implementation of the Law. In this manner, the proposed Bill will create an elaborate system of reporting and checks and balances, which will result in effective implementation of the Law.

Cabinet nod for judicial accountability bill

The Union Cabinet today approved ‘The Judicial Standards and Accountability Bill, 2010” and its introduction in the Parliament.

The Bill provides a mechanism for enquiring into complaints against the Judges of the Supreme Court and the High Courts, lays down judicial standards and requires the Judges of the Supreme Court and the High Courts to declare their assets and liabilities. The Bill seeks to replace the Judges (Inquiry) Act, 1968 while retaining its basic features. The enactment of the Bill will address the growing concerns regarding the need to ensure greater accountability of the higher judiciary by bringing in more transparency and would further strengthen the credibility and independence of the judiciary.

Background :

At present there is no legal provision for dealing with complaints filed by the public against the Judges of the Supreme Court and the High Courts. Also, the judiciary has adopted resolutions for declaration of assets by Judges and “Restatement of values of Judicial Life’. However, there is no law that requires the Judges of the Supreme Court and the High Courts to declare their assets and liabilities and also there is no statutory sanction for judicial standards.