The chief justice on Wednesday did not mince words in opposing the government's move to silence the judiciary with the judicial accountability bill. This was the theme of our cover story of the April 16 issue. Here it is, once again, to take the debate forward.

“What the hell is going on in this country?”

“The same minister (A Raja) is continuing. Is it the way the government is functioning? Is it rule of law?”

Many such observations of shock, surprise and disgust by the supreme court of India against the government’s utter disinclination to act against the brazenly corrupt, fed popular anger against the political class and gave muscle and momentum to Anna Hazare’s unprecedented movement in 2011.

But 2012 will be another story altogether. Soon, no judge of any court in India will dare to make such oral observations. If some of them still continue to do so, they will be proceeded against in the same manner as nursery children are awarded “black marks” for minor misdemeanours.

Yes, within the turn of a month, judges, from the highest court of the land to the lowest, will have to learn to zip up their lips. Omerta might be an essential business code of conduct for Italian gangs, but for judges? To echo what might soon be immortalised as the famous last words of the judicially active judge, “What the hell is going in this country?”

Here is what’s going on. Just before parliament went into recess on March 30, the Lok Sabha passed the much needed yet much delayed Judicial Standards and Accountability Bill of 2011. Hidden within the many clauses and sub-clauses of the bill was an extraordinary provision that will at best tell the honourable judges how to behave in court and at worst will amount to gagging them.

It came by way of an amendment inserted in the chapter dealing with “judicial standards to be followed by judges” (clause 3) and says, “No judge shall make unwarranted comments against (the) conduct of any constitutional or statutory authority or statutory bodies or statutory institutions or any chairperson or member or officer thereof, or on the matters which are pending or likely to arise for judicial determination” (clause 3 (fa)).

The bill sailed through the lower house with hardly as much as an acknowledgement, much less debate, about this draconian clause and will be taken up for passing by the Rajya Sabha after parliament reassembles on April 24.

As legal luminaries told Governance Now, this provision is “stupid,” “a joke”, “demeaning”, “insulting”, “crazy and absurd” and amounts to an “assault on judicial freedom”, “interference in the independence of the judiciary” and “gagging of the judiciary”. It has dangerous portents for criminal jurisprudence in the country where the wheels of justice have practically come to a halt and often the only (temporary) justice that is delivered is through such observations of judges as cited above.

Take the two observations we began with. 

Years have passed since Janata Party leader Subramanian Swamy wrote to the prime minister seeking permission to prosecute telecom minister A Raja for his role in the 2G scam. Documentary evidence too has been provided. Nothing happens. Swamy approaches the supreme court, complaining against deliberate inaction and seeks permission to prosecute Raja. By this time, newspapers have gone to town, laying bare the scam. But nothing happens to Raja. He has, in the meantime, been rewarded with the telecom portfolio for a second time in 2009 and continues merrily.

Then, in October 2010, the supreme court judges hearing the case explode: “The same minister is continuing. Is it the way the government is functioning? Is it rule of law?”

The PM wakes up from his slumber, asks Raja to step down and orders an inquiry. Soon the CBI arrests him and sends him to Tihar jail, where he continues to live.

Imagine the post-“unwarranted-comments” regime. Swamy would still be writing and pleading before the prime minister for action. Raja would still be telecom minister. All the businessmen who looted the country would by now have expanded their businesses manifold (instead of having to wind them up) and the bench that made the comments would be facing action for “judicial misconduct”! Neat, very neat, isn’t it?

Take the other example.

Hasan Ali, is accused of money laundering and under investigation of the income tax department since 2007. Four years later in 2011 he still roams free with his alleged billions of dollars in tax havens and ' 70,000 crore in tax liability until a supreme court bench asks the government: “What the hell is going on in this country?”

Again, imagine a post-unwarranted-comments situation. You get the drift.

There are many such instances – not to forget Suresh Kalmadi and the CWG scam – in which the judges speak tough and use strong words to get the government to act against the corrupt and the criminal holding high office.

Outrage

“(It is) stupid. You can’t legislate (such a provision).” This is how eminent jurist Soli Sorabjee reacts when Governance Now seeks his view on the amendment.

He then goes on to explain: “This provision appears to be incongruous because it is tantamount to saying that now a judge should behave in a bench. The matter is best left to the best sense and propriety of the judge. The underlying principle (of the amendment) is that the judges shouldn’t make remarks on parties who are not before them or issues which don’t arise and therefore unwarranted.”

“I feel very demeaned that there is a need for someone else to tell us how to behave. I was trying to persuade self-regulation in 1997 (when the supreme court adopted ‘Restatement of values of judicial life’ to guide the conduct of the judiciary). Now someone else tells us what to do,” said former chief justice of India JS Verma while delivering a keynote address on judicial reforms in New Delhi on April 7. (The ‘Restatement of values of judicial life’ was adopted during his tenure as CJI.)

A day earlier, he had said very much the same thing at a seminar in the presence of law minister Salman Khurshid, wondering aloud: “Can’t we do something which can remain in-house?”

Another retired CJI, VN Khare, told Governance Now: “Expression of opinion can’t be controlled by statute, but by self-regulation. Of course nobody is supporting unwarranted comments. I do realise unwarranted comments are made. Even the PM and ministers are not spared. But you discipline yourself. Not the statute.” He says it amounts to “interference in the independence of judiciary”.

Former supreme court judge N Santosh Hegde says: “I think it is gagging the court. In some circumstances it is necessary in the interest of justice to make comments which are relevant to the facts of the situation. Therefore the choice of making or not making a remark should be left to the judge.”

Former Delhi high court judge RS Sodhi says: “It is a joke. I am happy, I’ve retired. I feel this is an insult. What you are saying to us is that a judge doesn’t know what to say and what language to use. That (the judge) has no control over language and is now statutorily bound to behave. To my mind, besides being derogatory, it aims at curbing a fair comment. Therefore, a provision like this should never be introduced in the statute.”

He further says the amendment impinges on the independence of judiciary and may not stand judicial scrutiny in view of the restriction the constitution places by way of Article 121 (which says discussion on the conduct of a high court and supreme court judge in parliament to only impeachment process), he says the supreme court may possibly strike it down.

Leading lawyer Kamini Jaiswal says it amounts to “unwanted restriction on the freedom of expression”. “Just as the judges can’t gag anyone, how can judges be gagged? It is crazy and absurd. Talking doesn’t harm anyone, except hurting the ego. How talk hurts government?” she seeks to know.
Former law minister Shanti Bhushan thinks that instead of such an “absurd” provision the bill should have dealt with judicial corruption by providing for investigation and prosecution for taking bribe. “What is needed is not there. What is not needed is there.”

Case for Judicial discretion
Of course, it is nobody’s case that the judiciary is beyond reproach. Just like a government without the will can stretch inaction to scandalous limits, an “active” judiciary can get to be “too active”. There are many examples of judges stretching the limits as in this recent case of the Karnataka high court. The court was dealing with the appointment of Shankar Bidari as the DGP of the state, which was challenged by a fellow officer. Responding to an allegation of atrocities committed against tribal women by his juniors during a drive to catch forest brigand Veerappan, Bidari told the court, rather stupidly, that he was not “omnipresent and omnipotent like Saddam Hussein or Muammar Gaddafi” to prevent such atrocities. To this high court bench said: “Though he was not one of them, if what the two women (tribals) have said in their affidavit is true, he is worse than them” (read Saddam and Gadaffi) and struck down his appointment as DGP.

One may have doubts about this comment, especially since so much reliance is placed on “belief” rather “proof”. There is mounting evidence that judicial indiscretion is on the rise. So there are many, such as the chairman of the bar council of India, Ashok Parija, who think it is about time that something concrete is done to arrest this trend. “Why should the judges make unwarranted comments? I am very clear that the judges have crossed the ‘lakshman rekha’, forgetting that they are one of the organs of the democracy. They have been given a long rope...self-regulation has failed.” (The bar council of India, however, is yet to take a stand and the subject is not even in the agenda of their next meeting scheduled for April 15.)

But such sentiments can only be treated as reactionary rather than reasoned because there cannot be a watertight definition of what is an “unwarranted comment”. Sure enough, the bill chooses not to define “unwarranted comments” leaving it open to interpretation. Which means anyone can make a complaint that a judge has made an “unwarranted comment”, setting in motion a chain reaction – the complaint will go to an oversight committee, which may refer it to a scrutiny committee and, if needed, to an investigation committee before a definite conclusion is drawn.

What happens to the judge-in-the-dock until then? That is not clear yet, but surely, it isn’t a happy situation. But more pertinently, what happens to his/her ability to deliver justice and bring the culprits to book once this legal provision is set in motion? This could well mean that the judges cannot do much more than take notes and nod their heads in court, because any query, question, emotion or intonation can be taken as “unwarranted”.
 
Alternative
The supreme court, in its full court, did adopt a ‘Restatement of values of judicial life’ in 1997 to discipline the higher judiciary, which was then ratified and adopted at the chief justices’ conference in 1999. The first of the 16-point statement (for illustrative purpose rather than exhaustive listing), is quite relevant here. It says:  “Justice must not merely be done but it must also be seen to be done. The behaviour and conduct of members of the higher judiciary must reaffirm the people’s faith in the impartiality of the judiciary. Accordingly, any act of a Judge of the Supreme Court or a High Court, whether in official or personal capacity, which erodes the credibility of this perception, has to be avoided.”

The noble sentiment notwithstanding, self-regulation has failed. But justice Khare says it has failed “because the CJI doesn’t take action”. The errant judges are not hauled up. Things would change if appropriate action is taken.

The right course of action, according to him, would be for the supreme court to call a meeting and tell the judges not to conduct themselves in certain ways, otherwise internal disciplinary action would follow. Justice Verma too thinks the solution can be and should be found in self-regulation.

Prashant Bhushan, senior lawyer who has been leading the campaign for accountability of the judiciary, however, has something different to offer. He says the conduct of judges should be judged only by “a credible, independent and permanent” body, unlike the one provided in the bill. The bill provides for an oversight committee which has a majority of three (of five) who are ex-officio members (two sitting judges and attorney general). And the next level of examination, by the scrutiny committee, comprises members drawn only from the judiciary. A body which is independent of the government and the judiciary and permanent in nature, say a judicial commission, will be the right body to take up all complaints against judges, Bhushan says.

The Indian media is also free. It crosses the line every day and every moment. Even here, self-regulation has failed miserably. But it can be nobody’s case that the media’s freedom be curtailed by statute. The transgressions by the supreme court and high court judges are too few and far between in comparison.

If the two observations cited at the beginning were “unwarranted”, the government wouldn’t have felt constrained to jail Raja and Ali. “Unwarranted comments” come with their own death warrant. They make the judges look stupid and weaken the judiciary without help from parliament.

Hopefully, when the Rajya Sabha takes up this bill for consideration, better sense prevails. Because there is no limit low enough for touchy governments not to stoop to.