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SC’s new approach could pave the way for legislative action

SC’s new approach could pave the way for legislative action
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First Published: Sun, Sep 14 2008. 10 14 PM IST

Checks and balance: The Supreme Court. Some say the decision to allow scrutiny of a judge’s conduct, coming against a backdrop of complaints against judges, will enhance people’s confidence in the jud
Checks and balance: The Supreme Court. Some say the decision to allow scrutiny of a judge’s conduct, coming against a backdrop of complaints against judges, will enhance people’s confidence in the jud
Updated: Sun, Sep 14 2008. 10 14 PM IST
New Delhi: The recent move by Chief Justice of India K.G. Balakrishnan to initiate impeachment proceedings against a high court judge and his order last week permitting the Central Bureau of Investigation, or CBI, to interrogate another high court judge who was allegedly given a bribe will help strengthen judicial independence, potentially build public confidence in the judiciary and hopefully spur the legislature to enact pending Bills aimed at increasing judicial accountability, say some legal observers.
According to politicians and legal analysts, the recent instances, in which the judiciary has shown itself more open to scrutiny and punishment in charges of corruption, will encourage the legislature to take action and probably pass two consequential Bills relating to the functioning of the judiciary that have been stuck in Parliament for over two years.
The National Judicial Commission Bill aims to create a national judicial commission that looks into appointments and transfers, besides penalizing errant judges, while the Judges (Inquiry) Bill, 2006, aims to introduce a clear mechanism and procedure for the impeachment of judges.
Checks and balance: The Supreme Court. Some say the decision to allow scrutiny of a judge’s conduct, coming against a backdrop of complaints against judges, will enhance people’s confidence in the judiciary. Ramesh Pathania / Mint
Congress party spokesman Manish Tewari says: “I do believe that there should be independent oversight in the appointment of judges but post-appointment oversight is not a good idea as it affects the independence of the judiciary. The Prime Minister was absolutely right in saying that judicial appointments at all levels must live up to exacting standards.” He said that the National Judicial Commission Bill is with a parliamentary committee for consideration.
Santosh Gangwar, secretary, Bharatiya Janata Party (BJP) in the Lok Sabha, also agrees, “We do not want any section in our system unchecked. I think there should be a monitoring agency for the judiciary also. The BJP supports a national judicial commission for recommending the judicial appointments and to draw up a code of ethics for judges. There should be a proper mechanism to monitor the judiciary also.”
”The recent developments will spur legislative action”, says Madhava Menon, founder of the National Law School of India University and member of the committee of Centre- state relations, talking specifically of the National Judicial Commission Bill.
Ranbir Singh, vice-chancellor of the National Law School of Delhi, recalls a statement of Prime Minister Manmohan Singh last week where he observed that a “relook” into the judicial system was the need of the hour against the backdrop of recent developments.
Gangwar adds, “We can express our views on the pending Bills...only when the session meets.” The last session for the year starts on 17 October.
The impending impeachment of justice Soumitra Sen of the Calcutta high court recommended by the Chief Justice has stirred a great deal of interest in the legal fraternity on the issue of appointment and removal of judges.
Through a letter dated 4 August, the Chief Justice wrote to the Prime Minister suggesting that impeachment proceedings against justice Sen should be initiated as per constitutional provisions.
The Constitution allows for the impeachment of a judge through an order of the President after a two-thirds majority in an impeachment motion in Parliament.
A former judge of the Supreme Court, justice N. Santosh Hegde points out that justice Sen was appointed as a Calcutta high court judge in 2003 even though there was a complaint of misconduct against him. He had allegedly misappropriated funds in two cases while he was a practising counsel as far back as 1984.
Justice Hegde also mentions the instance of justice V. Ramaswami, whose impeachment process, the first in India, was halted in 1991 after Congress members abstained from voting in the impeachment motion. He suggests that the present procedure be changed since the impeachment of a judge should be based on “appropriate conclusions rather than political party agendas”.
Tewari feels the process of judicial appointments could be reworked in light of recent developments. “As India evolves, we need a greater element of sophistication (in judicial appointments). Maybe like in America we could have a national judicial commission to recommend names which can then be confirmed by the legislature or a committee of the upper house. Even the political views of a judge need to be taken into account, not to test whether a judge is left, centre or right leaning, but to see if the person to be appointed believes in the Constitution of India.”
Apart from hauling up Sen for unethical conduct, Bala-krishnan giving CBI go-ahead on 9 September to interrogate two judges of the Punjab and Haryana high court is another significant development. The alleged controversy in the Punjab and Haryana high court was sparked off on 13 August when a packet containing Rs15 lakh in cash was delivered to the house of justice Nirmaljit Kaur.
Kaur informed the police, whose investigations revealed that the money was meant for another judge, justice Nirmal Yadav. Following a plea by CBI to interrogate the judges involved, the Chief Justice, who had earlier set up a three-member judicial probe to examine the scam, gave his permission.
Supreme Court rulings have rendered high court and Supreme Court judges immune from direct examination by executive bodies like CBI without the Chief Justice’s consent.
Former CBI director Joginder Singh says that in such rare instances when CBI interrogates judges with the chief justice’s consent, CBI should be very “careful”.
He adds that this is not the first time a chief justice has granted permission for a probe into a judicial scam. “We have interrogated justice Shamit Mukerjee during the Delhi Development Authority scam case. The chief justice had granted permission then,” he recalls.
Taking a cue from the Chief Justice, justice Arijit Pasayat on 9 September, while hearing the case related to the alleged Uttar Pradesh provident fund scam, asked the Uttar Pradesh government to clarify its stand on the initiation of a CBI probe. The Uttar Pradesh government has now recommended a CBI probe.
The scandal relates to the siphoning off of Rs24 crore from the provident fund accounts of Class-IV employees by the Central nazir, or treasury officer, Ashutosh Asthana, in “connivance” with judicial officers and judges from 2003 to 2008. In his confession to the police, Asthana had named other high court judges and one Supreme Court judge, claiming that they were also involved. Through senior counsel Shanti Bhushan, the Indian chapter of the Berlin-based Transparency International requested the court to initiate an unfettered investigation of the judges and judicial officers by an independent agency.
Judges in the past had apprehended a grave threat to judicial independence if the immunity enjoyed by them from being questioned by agencies such as CBI was taken away based on complaints made by individuals. Singh says protecting judicial independence is crucial since the Indian people have more faith in the judiciary than the legislature and executive.
While there is much talk on the adverse effects of vexatious complaints, the Chief Justice’s decision to allow a probe by a Central agency such as CBI is one that was long overdue against the backdrop of recent complaints against judges, believe most analysts.
Justice Hegde says: “People’s confidence in the judiciary will now be enhanced. This was long overdue. Merely because the developments raise muck, we must not push it under the carpet.”
Krishnamurthy Ramasubbu and Liz Mathew contributed to this story.
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First Published: Sun, Sep 14 2008. 10 14 PM IST