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HindustanTimes Wed,16 Apr 2014

Make it possible to judge the judges

Nagendar Sharma, Hindustan Times  New Delhi, August 02, 2009
First Published: 23:08 IST(2/8/2009) | Last Updated: 02:03 IST(13/8/2009)

It was an unusual phone call for the Chandigarh police. A judge of the Punjab & Haryana High Court had called to say someone had dumped a huge pile of currency at her residence.

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The call sparked a sensation and turned into one of the worst humiliations for the country’s judiciary.

It was August 13, 2008, and Justice Nirmaljit Kaur had been handed Rs. 15 lakh by the clerk of a senior law officer with the state government. An investigation followed, and the police found that the money had allegedly been meant for another woman judge, Justice Nirmal Yadav.

Ten days later, the Chandigarh administration handed over the case to the CBI — a very rare occurrence for a case involving a judge. A committee of three judges set up by the Chief Justice of India (CJI) began a parallel probe into the allegations.

Justice Yadav proceeded on leave, on the advice of the chief justice of the high court.
In three months, the committee completed its probe, found her guilty of misconduct and recommended her removal.

Yadav challenged the report and the matter has been stuck ever since.
A difference of opinion between top CBI officials worsened the imbroglio. The result: The case is as good as dead.

Justice Yadav is still a serving judge. And she recently applied to the chief justice of the high court, demanding that she be allowed to hear cases again ‘since nothing has been proved against her’.

This case is a perfect example of all that is wrong with India’s methods of checking corruption in the judiciary. In all likelihood, that Rs. 15 lakh was meant for an acting judge. The fact that, nearly a year on, no action has been taken perhaps explains why 77 per cent of Indians see the judiciary as corrupt, according to a 2007 survey by Transparency International.

Even a then serving Chief Justice of India, S P Bharucha, said at a public event in 2002 that about 20 per cent of all judges were corrupt.                                View Larger Map

And yet judges are considered so far above the law that not a single one has been impeached in independent India. And the very idea of trying to determine their assets or entertain complaints about corruption or misbehaviour can send Parliament into shivers of indecision.

It’s time to temper this awe with reason.

Here’s what we suggest: Ease contempt laws and pass the Judges Inquiry Bill, framed in 2003 but never even tabled in Parliament.

This Bill makes it possible — finally — for the average citizen to file a complaint against a member of the judiciary, through a National Judicial Council that was to be set up under the law.

This council was to be empowered to impose measures on judges found guilty of ‘incapacity or misbehaviour’ and to recommend impeachment in the more serious cases.

Supposedly an independent council, it is comprised entirely of serving high court and Supreme Court judges.

This must be amended: The council should be comprised of eminent jurists and former CJIs. It could be headed by the serving Chief Justice of India, with the President as the appellate authority.

Among other amendments, there must be a provision for charges to be probed by the Central Bureau of Investigation — currently, investigating agencies cannot question a sitting high court or Supreme Court judge, even if there is evidence against them, without the permission of the Chief Justice of India.

And, if an impeachment order is passed against a judge by the President, he/she should be prohibited from practicing law or appearing as lawyer in any court or tribunal in the country.
The report of any inquiries against a judge should also be made available under the Right to Information Act.

Under the Judges Inquiry Bill, citizens filing cases without sufficient evidence face stringent penalties, including hefty fines and jail time. This will protect the sanctity of the judiciary.

Most major democracies around the world — including the UK, the US, Canada, Sweden and Germany — have just such laws to enable complaints against the judiciary to be investigated.

Yet in India, the Congress-led UPA government has discussed the draft of the bill with three successive chief justices, all of whom have shot it down.

Law Minister M Veerappa Moily says the government is committed to a reform agenda, but “will take the judiciary into confidence”.

His predecessor, H R Bhardwaj made two attempts to push the Bill, but failed to get it passed. “There was stiff resistance from the judiciary to introduce any step to discipline judges,” he says.
The BJP-led NDA government had made a similar failed attempt in 2003.

Former Chief Justice of India J S Verma says the situation can only be resolved if the government decides to be decisive.

“The fact is that the judiciary has failed to implement its in-house mechanism to check corruption,” says Justice Verma. “It is the duty of the government to enact a law to check corruption in the judiciary. So why this dilly-dallying?”

The problem

India is the only major democracy in the world where citizens cannot complain against corrupt judges. Three attempts over the last six years to amend the Judges Inquiry Act and make this possible, have failed. A probe against an errant judge is currently possible only with the sanction of at least 50 Rajya Sabha Members of Parliament (MPs) or 100 Lok Sabha MPs. Meanwhile, allegations of corruption have eroded the common man’s faith in the judiciary. In 2007, a Transparency International survey found that 77 per cent of Indians see the judiciary as corrupt.

HT’s fix

  • Ease contempt laws and pass the Judges Inquiry Bill — after considerably strengthening it.
  • First, include jurists and former Chief Justices of India on the National Judicial Council, which will register complaints against judges and impose measures or recommend impeachment.
  • Currently, it is comprised entirely of serving high court and Supreme Court judges. The council could then be headed by the acting CJI, with the President as the appellate authority.
  • Enable charges to be probed by the CBI. Currently, investigating agencies cannot question a sitting high court or Supreme Court judge, even if there is evidence against them, without the permission of the Chief Justice of India.
  • If an impeachment order is passed against a judge by the President, make it illegal for him/her to
    practice law or appear as a lawyer in any court or tribunal in the country. This will act as a deterrent to corrupt practices.
  • Make all inquiry reports available under the Right to Information Act.
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