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A Watchdog Sans Bite

Prem Shankar Jha

Thursday 14 August 2003, by JHA*Prem Shankar

Article paru dans Outlook India, ?dition du 14 ao?t 2003.

The bill fails to place the commission above the judiciary. Three of the five members, a permanent majority, will be judges

A few weeks ago, Union law minister Arun Jaitley introduced a bill in Parliament designed to set up a National Judicial Commission. If passed it will become the 98th amendment of the Constitution. On the surface, it looks like a noble effort to reinforce the sanctity of the law and the incorruptibility of the higher judiciary. The judicial commission will have five members: the Chief Justice of India, two other Supreme Court judges, the Union law minister himself and one eminent citizen nominated by the government enjoying a fixed term of three years. This commission will make recommendations-binding upon the concerned chief justices and governments-for the appointment and transfer of judges to the Supreme Court and high courts.

It will also draw up a code of ethics for judges and will have the right, suo motu, to enquire into cases of misconduct or deviant behaviour by a judge and advise the chief justice of a high court appropriately. Both the code and the advice will be binding on the concerned authorities.

It all sounds wonderful, till we start looking more closely at what the amendment does not say or specifically excludes. To begin with, nowhere does it tell us precisely how the code of conduct shall be made binding. The only meaningful way to do this is to confer the power on the commission to ensure the dismissal of a judge if he violates the code. But the bill explicitly denies such power to the commission, its mandate being to inquire only into ’cases of misconduct or deviant behaviour other than those calling for his (a judge’s) removal’. The judicial commission, in short, will have the power to appoint and transfer judges but not to sack them. That power will remain with Parliament or the state legislatures, and will only be exercised under the Judges Enquiry Act, which, as past painful experience has shown, makes the successful impeachment of a high court or Supreme Court judge virtually impossible.

A still closer examination shows the entire endeavour to be a fraud. The commission described above will have some limited power to focus public attention upon, and thereby curb, misdemeanours of the common or garden variety, such as taking bribes to favour a plaintiff or defendant. But it will have almost no power to prevent the executive from exercising undue influence upon the judiciary. Two of the five members of the commission will always be government appointees. Thus it will have to ’win over’ only one more judge to ensure that the commission appoints, transfers, indicts or exonerates any judge of its choice. Much of the scandal that attaches to the higher judiciary and its resultant delegitimisation in the eyes of the public has arisen from its willingness to kowtow to governments in the past. All that a government has to do is to let a judge know that his future promotion, or appointment, to a lucrative chairmanship of a commission depends on the way he votes. In a disturbingly high number of cases this would be enough to swing the judgment its way.

This malpractice could have been curbed under even this misshapen amendment if it had specified that members of the commission and high court and Supreme Court judges could not be appointed to other offices of profit by the government. But that clause is significantly absent from it.

In the final analysis, the bill is an eyewash because it deliberately fails to place the commission above the judiciary. This was necessary if its purpose was to restore the public’s complete faith in it. But three of the five members, a permanent majority, will be judges themselves.

This clumsy mess is not due to any lack of competence in the law ministry, but is deliberate. To see how deliberate, one need only compare the actual bill with a draft bill that was proposed by a panel of eminent jurists and retired judges to the government.In it the chairman was to have been appointed by a collegium consisting of all the judges of the Supreme Court, one member was to have been appointed by a similar collegium of CJs of the high courts, one by the Union cabinet, one by the leader of the Opposition and one elected by the Bar Council of India. All would have had a fixed term of five years. The commission’s recommendations were to have been binding not only for appointments and transfers but also for the removal of judges. This would have followed an inquiry by three retired high court judges chosen by the judicial commission. Most important of all, the draft had recommended that no person who has been a judge of the Supreme Court would be allowed to act in any court or before any authority within the territory of India. Instead, he was to get a pension equal to his salary for life.

A commission set up along above lines would have been an effective watchdog over the higher judiciary. This would have shored up people’s faith in it at a time when corruption and lack of accountability, which pervade the bureaucracy and the political system, have forced more and more people to turn to it for an enforcement of their right to being administered according to the law. But in a criminalised political system where posts in the customs, the income tax and the police are regularly ’sold’ by ministers to their subordinates in the confident belief that they will be able to recoup all of their ’investment’ through extortions from the public, an incorruptible legal authority is the last thing that the decision-makers need.

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