Saturday, January 29, 2011

Overhauling the Judiciary


The Indian Judiciary witnessed numerous crests and trough in the last 12 months. It manufactured some quantitative progress in the crucial and "much talked about" cases like the Babri Masjid, Bhopal gas Tragedy, Jessica Lal etc, but is now facing a wave of protests for the verdict on Binayak Sen. On a slightly positive note, the Supreme Court recruited its fourth woman judge since its inception - Justice Gyan Sudha Mishra. It also played an over arching role when it opined to distribute stored grains among the poor [ raising quite a few eyebrows in the legislature ].

However, much of the establishment was perforated by the issues related to P D Dinakaran in a land scam case, charges of corruption against Calcutta High Court judge Soumitra Sen, the "Uncle Judge" syndrome and declaration of assets coming under the purview of RTI. The Law Commission's 230th Report presented to the Government in 2009 aims at tackling these issues in particular and has listed down some measures for the same. Subsequently, Bill no 136 of 2010 i.e. The Judicial Standards and Accountability Bill was introduced in the Lok Sabha on 1st December.

The text of the Bill says that it has been framed "to lay down judicial standards and provide for accountability of Judges, and establish credible and expedient mechanism for investigating into individual complaints for misbehaviour or incapacity of a Judge of Supreme Court or High Court, and to regulate the procedure for such investigation...

In short, it sets judicial standards and makes judges accountable for their lapses. It will also mandate the judges of the High Courts and the Supreme Court to declare their assets and liabilities, including those of their spouses and dependants.

The bill will replace The Judges (Inquiry) Act, 1968 which was enacted with a view to lay down a procedure for removal, for proved misbehavior or incapacity of Judges of the HC and the SC by way of address of the Houses of Parliament to the President.  There is, however, no legal provision at present for dealing with complaints filed by the public against Judges of the HC and the SC, who are governed by ‘Restatement of Values of Judicial Life' adopted by the judiciary as a code of conduct without any statutory sanction. 

It contemplates setting up of a national oversight committee with which the public can lodge complaints against erring judges, including the CJI. The proposed five-member committee will be headed by a retired Chief Justice of India, appointed by the President, and have a serving Judge of the Supreme Court and a serving High Court Judge, both nominated by the Chief Justice of India; the Attorney-General; and an eminent person nominated by the President.

On receiving a complaint, the committee will forward it to a system of scrutiny panels. The scrutiny panels will have the powers of a civil court. They will be required to give their report within three months to the oversight committee. After the report from the scrutiny panels is received, the oversight committee will set up a committee to further investigate the case. Like the scrutiny panels, the investigation committee will have the powers of a civil court; it will have the power to frame definite charges.

If the charges are not proved, the investigation committee can dismiss the case. Otherwise, it will give a report to the oversight committee, which can issue an advisory or warning if the charges are not too serious. If the charges are serious, the committee can request the judge concerned to resign. If the judge does not do so, the oversight committee will forward the case to the President with an advisory for his removal. In such an event, copies of all relevant documents will be laid in Parliament and an impeachment motion moved. In the Lok Sabha, not less than 100 members will be required to move the motion, and in the Rajya Sabha not less than 50 members will be needed.

The bill also makes it mandatory for judges to declare their assets. In addition, judges would be required to file an annual return of assets and liabilities. All the details would have to be put up on the websites of the Supreme Court and the High Courts. The bill also bars immediate family and close relatives of judges from practicing in their courts.

The need for a statutory mechanism to address complaints of the public has been felt to bring greater transparency in the judiciary. Union Law Minister Verappa Moily has said that the proposed bill would strengthen the institution of judiciary in India by making it more accountable thereby increasing the confidence of public in the institution.

In India, courts are equivalent to "procrastination" especially because of corruption, procedural technicalities and more than a crore pending cases. This bill definitely is a noble approach to tackle the first issue. As of now, the bill has been referred to the Department Related Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice, headed by Smt. Jayanthi Natarajan, Member, Rajya Sabha for examination and report.

Passing the bill might not be much of a problem but the effective implementation thereof will be the major challenge as the rot in the higher judiciary seems to be much deeper than what has surfaced.

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Indira Mukherjee believes that the Judiciary needs massive overhauling. If you feel the same, you can share your views with her at indianpolicy2010@gmail.com

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