The Judicial Standards And Accountability Bill 2010 intends to place on the Statute Book of the Nation an enactment providing for a complete Code (1) to lay down judicial standards and to provide for accountability of the Judges (2) to establish credible and expedient mechanism for investigating into individual complaints for misbehaviour or incapacity of a Judge of the Supreme Court or of a High Court (3) to regulate the procedure for such investigation (4) for providing of the presentation of an address by the Parliament to the President of India for removal of a Judge, and (5) to provide for connected or incidental matters.
The Bill seeks to repeal The Judges (Inquiry) Act 1968 which was enacted with a view to lay down the procedure for removal of the Judges of the Supreme Court and of the High Courts, but which does not contain the mechanism for dealing with the complaints filed by the Public against the Judges.
The absence of any provision in The Judges (Inquiry) Act 1968 for dealing with complaints to be filed by the Public against the Judges, the tardy and cumbersome procedure of impeachment, coupled with proven inefficacy of the same, the rising number of complaints against Judges, the general public perception that it is rather too late for the Law-makers to come out with some measures to check and arrest increasing incidents of lack of integrity, sincerity, transparency and accountability and the demand of the Civil Society that this subject as a whole should form the part of a strong Lokpal are some of the reasons which prompted the Union Government to come out with such a Bill.
The Bill defines certain important Terms like "Assets", "Incapacity", "Judicial Standards", "Liabilities", "Misbehaviour", etc. for the purpose of providing their comprehensive meaning.
Defined "misbehaviour" means and includes, conduct which brings dishonour or disrepute to the Judiciary, willful or persistent failure to perform the duties, willful abuse of Judicial Office, corruption or lack of integrity or committing an offence involving moral turpitude etc.
Special mention requires to be made to the fact that the failure to furnish the declaration of assets or liabilities in accordance with the Provisions of the Bill amounts to "misbehaviour". Willful suppression of any material fact even related to a period before assumption of office which would have a bearing on the integrity, has been made to fall within the purview of "misbehaviour". This would not only oblige the Judge to make a disclosure of such facts, but the past deeds and actions of a Judge would be under the scanner.
"Judicial Standards to be followed by Judges", a Charter of Ethics, would insist that every Judge shall continue to practice universally accepted values of judicial life as specified in the Schedule to the Bill and provides for certain "DON'TS". Accordingly, no Judge shall contest the election to any office of a club or society or hold such elective office except in a society or association connected with the law or any Court. No Judge shall have close association with the individual member of the Bar who practice in the Court in which he is a Judge and shall not permit any member in his immediate family to appear before him. The Judge shall not hear and decide a case in which a member of his family, close relative or a friend is concerned. The "DON'TS" list further forbids the Judge to accept gifts or hospitality, except from his relatives, to hear and decide a matter of a Company or a society in which he or any member of his family holds share or interest unless the same is duly disclosed and there is no objection to his hearing of the matter, to speculate and to seek any financial benefit in form of perquisite or privilege attached to his office. He shall not have bias in his judicial work or judgments on the basis of religion or race or caste, sex or place of religion.
This DON'TS list, widely publicised and accounted for on various occasions, at different forum, has failed to achieve the desired goal.
Bias would mean predisposition of a Judge, against or in favour of one of the parties. The Bias could become apparent in very many forms, but generally they do not. Bias becomes discernible more often when the entire decision making process is over and the verdict is delivered.
West's Encyclopedia of American Law (Edition 2) tries to define Bias, thus: "A predisposition or a preconceived opinion that prevents a person from impartially evaluating facts that have been presented for determination; a prejudice. A judge who demonstrates bias in a hearing over which he or she presides has a mental attitude toward a party to the litigation that hinders the judge from supervising fairly the course of the trial, thereby depriving the party of the right to a fair trial. A judge may Recuse himself or herself to avoid the appearance of bias".
Mr. K. T. S. Tulsi, Senior Advocate Supreme Court of India, in his article "Judicial Activism In The Field Of Criminal Law" points out the test of one being Biased, with the assistance of English Case Law. The distinguished Lawyer and Critic writes:
"Bias, as a principle of natural justice, is determined from the point of view of litigant. For ensuring the absence of bias, the Judge is not to look at his own mind and ask himself, "Am I biased?" but to look at the mind of the parties before him. There should be no doubt about the purity of administration. Any person who is to take part in it should not be in such a position that he might be suspected of being biased."
< Allinson Vs. General Council of Medical Education (1894) 1 QB750 >
Mr. Tulsi goes on to say :
"The Courts look at the impression which would be given to the other people. Even if the Judges are impartial, if reasonable persons would think that there was a real likelihood of bias, natural justice is breached. Judges have to submerge their private feeling on every aspect of the case, but the common man does not understand this."
< Metropolitan Properties Co.(FGC) Ltd. Vs. Lannon(1969) 1 QB577 >
Objectionable Bias which is anathema to the concept of Fair Hearing vitiates the Judicial Process and the final outcome and when proved during a Judicial Review by the same or a higher Forum is a known ground for branding the verdict a void one. The stipulation against Bias therefore shall have to be appreciated with great concern.
Recusing himself by a Judge from hearing a particular matter as prescribed under the Judicial Standards, is sometimes appreciated. But it does come under strong criticism and discontent amongst litigating parties, when a matter is tossed from Court to Court because more than one or two Judges decline to hear the same. The recusing Judges are not required to assign reasons for their recusal. Litigants are left to speculate regarding the future of their case. Should, in such circumstances, the recusing Judge not disclose the reason for the recusal to the Chief Justice under prescribed memo?
Under the Judicial Standards a Judge is forbidden to hear and decide a matter of a Company in which he holds shares or interest. Would this mean that a Judge having a very very small stake in a Company be allowed to recuse himself, when Judges, as a matter of known fact, invest in small lots in many companies paying more dividends?
The accepted Judicial Standards require to expand if they are expected to cater the needs of the changing Judicial Scenario. If Reiteration of Judicial Standards and Enactments stipulating them are found to be failing, the Judicial Wisdom should come into play, including such Standards in the Charter.
Under the Bill, every Judge is required to make a declaration of his assets and liabilities in the manner provided. He is also required to furnish related information to the Competent Authority in such form and in such manner as may be prescribed.
The prescribed Format must be so articulated that all the information regarding assets and liabilities provided are comprehensive, unequivocally clear and unambiguous, leaving no scope for interpretational questions and queries.
The Bill appears quite anxious to establish and put in place credible and expedient mechanism for investigating into the Individual Complaints for misbehaviour or in incapacity of a Judge either of the Supreme Court or the High Court.
It is because of this concern that the Bill authorises any person, making an allegation of misbehaviour or incapacity, to make a complaint to the Oversight Committee, who shall refer the same to the appropriate Security Panel. The Panel on being satisfied, that there are sufficient grounds for proceeding against the Judge or otherwise, shall submit a Report to the Oversight Committee within a period of three months. The Panel has all the powers of the Civil Court under the Code of Civil Procedure. This authorization will enable the Panel, in brief, to summon the witnesses and to record their evidence. The Oversight Committee is to constitute an Investigation Committee to investigate into the Complaints, recommended by the Panel in its Report.
The Bill, while laying down the Inquiry Procedure of the Investigation Committee, insists on framing the definite charge, on the basis of which the Inquiry is to be held and, on giving the Judge Reasonable Opportunity of Being Heard.
During the pendency of the Inquiry by the Investigating Committee, the Oversight Committee may recommend stoppage of assigning the Judicial Work to the Judge. On the receipt of the Report from the Investigation Committee, the Oversight Committee, upon their satisfaction, may dismiss the Complaint or issue Advisories or Warnings to the Judge, but when satisfied that there has been a prima facie commission of any offence, may recommend to the Central Government for the prosecution of the Judge. But, where the Oversight Committee has been satisfied, that charge(s) has been proved and that they are of serious nature warranting the removal, it shall request the Judge to voluntarily resign, and on his failure to do so, advise the President to proceed for the removal of the Judge, and the President thereupon shall refer the matter to Parliament, which shall be laid before both Houses of Parliament. On laying of the advise, the Central Government may move a motion, in either Houses of Parliament, for taking up the said advise for consideration by the House.
Over and above the said provisions relating to the Making of Complaint by an individual, the Bill proposes to authorize the Members of the Parliament to give a Notice of Motion, for presenting an address to the President, for the removal of a Judge. The Notice given in the House of People, should be by not less than one hundred Members of that House, while in the Council of States, should not be by less than fifty Members.
Upon the admission of the Motion by the Speaker or the Chairman, the same shall be kept pending, and the matter shall be referred to the Oversight Committee for constitution of an Investigation Committee, which shall have to follow the procedure and submit a Report. If the Report contains a finding that a Judge is guilty of any Misbehaviour or suffers from any Incapacity and, if the Motion is adopted by each House of the Parliament, in accordance with the Constitutional Requirement, the Misbehaviour or Incapacity of the Judge shall be deemed to have been proved and, an address, praying for the removal of the Judge, shall be presented to the President in the same session.
The Bill thus authorizes both the Individual Complainants and the Parliament to initiate and accomplish the Disciplinary Actions against the Judges. But in each of the methodologies the process appears to be lengthy and time consuming.
The consoling features are that the Security Panel, the Oversight Committee and the Investigation Committee have been given the powers of a Civil Court. This would facilitate the summoning and enforcing of the attendance of witnesses and examining them on oath, along with the discovery and production of documents. The Investigation Committee has been clothed with the Powers of Search and Seizure.
The proposed Constitution of the National Judicial Oversight Committee reveals that everything has not been made "in house". The Attorney-General for India and an eminent person nominated by the President shall be on the board, bringing in the element of "other than the judiciary". This would not only strengthen the functioning of the Committee but would inspire the confidence of objectivity amongst the people desirous of making the Complaint.
It appears difficult at this juncture to appreciate the ultimate shape of the enactment when the Bill shall sail through the legislative process. But the present public perception sees the Bill as a right step in the right direction, with a hope that experience would educate and teach us the ways and means to move towards a more beneficial and goal reaching legislation.
(Justice Suhrid Dave is an Honorary Advisor to Observer Research Foundation)
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