Thursday, September 27, 2007

Lesson 24: Justice... is blind?

or, Where the courts are beyond the law...

The Judges Inquiry Bill (2007) should be introduced in the Parliament next week. The bill is all about holding the Judiciary accountable for what they do -- if and when one feels that either justice has not been meted out or if a judge has been 'corrupt'. Remember the movies where we have seen judges taking bribes? Now think... So you have been harassed by the police, your neighbour, your in-laws, whoever and decide to move the court to help you out. You move the highest court of law for a case and perhaps the person sitting on that esteemed chair is not honest. Will you be sure that you will get justice? When studying, one of the chapters in my civics book said that when a citizen does not have anywhere to go, the Supreme Court will listen. It will give you justice, it will do right or at least try. Now... the SC is perhaps becoming a body that becomes all-powerful; but that power perhaps will not be used for the people. Judges will perhaps become prosecution, defence, jury and executioner; all rolled into one. And if perhaps there is money involved, the verdict might not make any sense to you and me. WHAT will we do? WHO will we go to?

Here, is You Don't Know Who (YDKW1) makes a reappearance now to give us the juice on what the entire Judges' Inquiry Bill is all about; why we need it and what the court has to say about it. Read on, it's important for all of us.

Contributed by You Don't Know Who 1

There is a saying along the lines of, "It doesn't matter to the grass if the elephants make love or if they make war, it gets crushed either way."

At times, when huge institutions are in conflict, it can feel like that for ordinary citizens. Frankly, all you want to do is get the hell out of the way, but that may not be the best way to deal with things.

Most people in India will not really know about this, but the Parliament is currently looking at a Judges (Inquiry) Bill. Knowing this may not make much difference to your day as an Indian citizen, but it should, because it is quite likely to affect your life. And just because the judiciary and the Parliament are calling each other names, shouldn't make you forget that the primary purpose of these huge institutions, these elephants, is to serve you.

The Judges (Inquiry) Bill, 2007, is supposed to replace the Judges (Inquiry) Act, 1968. The original Act was brought into force to investigate complaints against judges. It has been used. Once. Unsuccessfully.

This was in the case against the Supreme Court judge, Justice Ramaswamy. Despite the fact that the Inquiry Committee found the judge guilty of 11 out the 14 charges including those of financial fraud in which his actions were "were such as to bring dishonour and disrepute to the judiciary so as to shake the faith and confidence which the public repose in the institution," Ramaswamy was not removed from office. In fact the impeachment motion against him failed, and he happily went back to his job. No other Inquiry into a judge's behaviour has taken place, ever.

For the last 15 or so years MPs have been trying to figure out a way to make sure that something like this does not recur, and during that time we have all heard many stories of judicial misbehaviour. A few of them are listed here
but the thing is that the Supreme Court has ruled that the judiciary is off-limits.

It has served contempt of court orders against journalists investigating or even the CBI conducting a raid without the Chief Justice of India's permission. Even the Right to Information Act has been declared not applicable to the judiciary.
Now this might not be all that bad. The impeachment process against a judge of the High Court or Supreme Court has been made tough for a reason.

Judges should be independent and not be open to coercion. But it is also common sense to understand that if somebody has power, and no oversight whatsoever, they might be tempted to abuse it. If they cannot be investigated, cannot be questioned and cannot be removed, there might be a bit of an issue. In fact the Supreme Court has interpreted the Constitution to mean that even appointments are done on the advice of the serving judiciary. So appointments of the judge, any oversight or punishment (and we would never know) is all in a few people's hands.

Previous governments have tabled a number of bills until we had a draft version of the bill in 2005. It was sent to the Law Commission, headed by Justice Jagganadha Rao, came back with a report that judicial oversight should be exclusively by the judiciary, and the judiciary alone. The Law Commission argued that this is the case in (most of) the rest of the world. The funny thing is that the National Advisory Council had come out with a report saying the exact opposite, that in most parts of the world judicial oversight is by a wider body. For some reason the Law Commission in its 400+ page report somehow forgot to even mention the judicial reforms undertaken by the UK, and the Act passed in 2005 appointing a committee to appoint judges (none of whom are of the judiciary) and an ombudsman to investigate judges (who is not a judge). So we have the current Bill, about which one of the Members of the Parliamentary Standing Committee has said, "we talk about accountability, instead of Judges appointing Judges, which is bad enough in itself; Judges judging judges, even when there are complaints against them, I think, is worse".

And in the midst of all this when Mid Day magazine raises the issue that the sons of the former Chief Justice of India, Justice Sabharwal, were members of a mall and building development agency that made crores when the Supreme Court forced the implementation of the sealing drive, the Supreme Court cries, 'Contempt!" and sends the editor and reporters to jail. It really makes you suspicious.

Do you really want such judges passing judgments over your cases? With no oversight, no transparency, nothing? Think about it. Inform yourself. It is your country, these are your institutions. Hold them to account.

PS: HOW??? WHO do we go to? Even 'truth' is not seen as enough -- even with proof -- to bring a judge under the scanner. Andha kanoon? And again I ask, how long will you keep quiet?


Care Bear said...

So in a nutshell the public soon can file complaints against an errant judge and then another set of judges would decide if the public complaint is right or wrong and whether to punish the judge or not.Which would also mean that the advice by the National Advisory Council is rejected.

hmm.. Public in India is huge and i can see another set of unsolved cases piling up.Which would also mean further delay of the already filed cases in court.And the thought that ANYONE out there can file a complaint against someone in such a respectable position does not feel all that good.

J. Bo said...

NO Care Bear.

You sound like Ram Jethmalani. So since there are OTHER cases lying, the Judiciary should be allowed to do whatever???

1. ALSO, anyone CANNOT file a case. SEE the FUN ---> If say YOU file a case, the court has the right to feel that your case does NOT have merit and can SIMPLY --- for even filing a case -- put you in jail for a year and fine you Rs 25,000.
So effectively, they ENSURE that no one DARES to file a case.

2. To even MOVE a case against a judge, ie, asking for any 'action', there needs to be a 2/3rd majority in the Lok Sabha. Roughly, 100-odd MPs have to agree to pass the motion for enquiring into alleged misdeeds of a judge.

3. LOL. Public in India does not DARE to lodge cases when their daughters are raped, do you think they will DARE to challenge a judge? Say THE chief justice of india?

BY the way, what I have just written here --- IF the judiciary FEELS -- with or without reason -- that it is contempt of court...I go to jail.

Fair? Justice? Or smelly, rotten fish?

Care Bear said... the article feels complete.

If there are strict rules on what criteria one can file a complaint,i wouldn't worry about the other cases already piled up.But it seems like they have gone to the other end by imposing an unwanted fear on someone thinking to complain against...

2/3rd majority in the Lok Sabha- That simply wont work.I guarantee.

Rape cases and an opportunity for someone to black mark a well positioned person is different.
And if that person happens to be the Chief Justice,its going to be real bad for the country.Someone in such distinguished position need to be scanned before hand,maybe the whole of his career line and then offered the job and to be kept in something like a 'candid camera' to evaluate if he's doing his job well...

Now suddenly everything looks like a drama.Something like... passing a bill just for the sake of passing it.

And no ones going to jail.

Crimson Feet said...

With all due respect Mr YDKW1, I tend to have an opposite view here, and while I write this, I feel a strange angst rise inside me.

1. I think politicians have a higher probability of being corrupt than judges. morally, ethically, socially, EVERYWAY!

2. I doubt the intention of the politicians who want to pass this bill. All that they may seek is that the "supreme power" reside with the legislature, directly or thru a panel, and not the judiciary. (now legislature is technically the FINAL representative of people. But I know that most of those people became corrupt the moment they reached there, and thus hold no grounds to represent ME anymore)

3. Plight of the utterly useless, negative and unpatriotic quota bill by Arjun singh is a great example why JUDICIARY needs to be completely independent of the blood sucking elements among the legislature

4. You have local goons and gun lords sitting as MPs but never as JUDGES!

5. I SMELL FISH. ROTTEN FISH... but in the intention to take freedom away from judiciary, not among judges.

6. I have no idea of the judicial reforms undertaken by UK, but just because its good for them does not mean its good for us. I will support reforms as long as they are initiated by Judiciary and not the legislature.

7. I am ready to accept numbered cases of judges misconduct as against NUMEROUS correct and honest judgments. For the sake of those 2-3 unfair acts, I cant risk ALL the major decisions to be thrown open to legislature's descretion (either directly OR indirectly)

8. "For the last 15 or so years MPs have been trying to figure out a way to make sure that something like this does not recur". WHat are they trying to do to stop the corruption AMONG MPs themselves.?!!?

9. I am ready to live with judges as is, since they are a safer bet rather than the IMMENSLY corrupt politicians and the system.

I think the juiciary SO FAR is the least corrupt system in India and may it please remain so.
If I am wrong about this, then I will decide to stop worrying about the entire system and country. I'll be heartbroken and devastated. I have already lost hope in the political and administrative system. I trust corporate world for HIGHER ethical standards. I'll pray for the governments to be CORPORATISED someday and for now will concentrate on my next expedition to Himalayas!! ...

i am sad... and i dont want politicians to spread further cynicism by doubting the judiciary!

Crimson Feet said...

yes... i second carebear... there need to be stringent systems prior to appointment (which have been suggested if i am not wrong)... thats it... nothing post appouintment. total freedom post appointment!

Anonymous said...

A few points.

The 2/3 of Parliament motion needed to remove a judge is pretty stringent, and would be applicable in any Bill without a constitutional amendment. The new Bill would make it easier to lodge a complaint (unless, of course, the judiciary decide to imprison you for it, as JB has kindly pointed out) but removal is still a very difficult process.

Care bear: the Standing Committee has argued strongly that the complaint should be filtered by an impartial "Empowered Committee" before any investigation happens. Yes, there are a huge number of pending cases, over 25 million. Also about 1/5th of the judicial seats are vacant, and have been for some time. And who is supposed to be suggesting judges to be appointed? You guessed it: the judiciary.

Crimson, this is not, and should not be about the legislature vs the judiciary, only about accountability. Nevertheless, there has been quite an effort to try and make politicians abide by codes of conduct, rulings by the Supreme Court, and legislation such as the RTI Act passed by Parliamentarians themselves, that allow for oversight. That is the whole principle of a separation of powers in a democracy, that at least one of them oversees the work of others and vice versa. The judiciary is taking a stand specifically against this principle, which is what is troublesome.

The UK Act, and similar legislation, are only relevant insofar as we can learn from others with similar systems. And because the Law Commission, while citing many examples overseas, deliberately ignored such obvious ones.

In the end, your opinion is yours and hopefully based on some facts. I presume that you have read statements by former Chief Justices alleging that at least 20% of the judiciary is corrupt. I presume that before you made your remarks you also had a glance at the Parliamentary Standing Committee report, which extensively quotes retired and serving judges.

The business of a citizen is to ask questions, demand accountability and honesty from ALL their institutions. Before you bow your head to the will of the judiciary, maybe you should think a bit on a quote of Ben Franklin's, "Those who would sacrifice liberty for security deserve neither".

Is it seriously your choice to just blindly trust the judiciary? Will that provide you with security?

Care Bear said...

an impartial "Empowered Committee"

Sounds good.But when we count the heads and then look into their brains....

And i wonder which other country has such uneducated people sitting in Parliament.

You know we should begin from scratch... (AARRG)

Well...YDNW,even though i try to keep up with all the news around,its first time reading about this Bill.Thanks.Much appreciated.

Mary said...

‘Be you ever so high, the law is above you’.

As a student of Eng Hons in Calcutta University
I had the great privilege of critically studying Sir Edmund Burke's
"Speeches on the Impeachment of Warren Hastings"

Even today, 40 yrs later, I am filled with a sense of elation
When I remember that sumptuos meal of d mind!

Here is a small extract from those great speeches:

We have no arbitrary power to give, because arbitrary power is a thing which neither any man can hold nor any man can give.
No man can lawfully govern himself according to his own will;
much less can one person be governed by the will of another.
We are all born in subjection—all born equally,
high and low, governors and governed,
in subjection to one great, immutable, pre-existent law,
prior to all our devices and prior to all our contrivances,
paramount to all our ideas and all our sensations,
antecedent to our very existence,
by which we are knit and connected in the eternal frame of the universe,
out of which we cannot stir.
This great law does not arise from our conventions or compacts;
on the contrary, it gives to our conventions and compacts all the force and sanction they can have.
It does not arise from our vain institutions.


The line I have put as a header to this post is what England used against the despotic King James I of England Way back in the 16th century.

Surely we cannot deny ourselves this in todays world!

Our Nation runs on three wheels
The Legislature, the Executive and the Judiciary -
Of which none is above the other, the cogs of which must fit into each other....

Such a Bill must be welcomed on two counts:
*Judges cannot claim any high moral ground. Too many have fallen on the way!
**These are the days of Judicial Activism. There should be checks in place to ensure that the activism is free n fair and not partisan...

That is on the need of the Bill.

On its propriety I can comment only after I look into the changes proposed in the present Act
Which so obviously is a toothless tiger:
Look what happenrd in Justice Ramaswamy's case!