A day before the first half of the budget session ended on March 30, Lok Sabha passed the Judicial Standards and Accountability Bill of 2011 with an extraordinary provision that seems to have escaped scrutiny.

This provision effectively gags the higher judiciary – judges of the supreme court and high courts.

It came by way of an amendment in the chapter “judicial standards to be followed by judges” which deals with the dos and don’ts for the higher judiciary (clause 3). It says no judge shall “make unwarranted comments against 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)).

What is “unwarranted comments”? The bill is silent on that. So, it is open to interpretation.

This means anything can be interpreted as “unwarranted” by anyone (the bill provides that anyone can make a complaint), setting in motion a chain reaction – the oversight committee, the scrutiny committee and then an investigation committee will look into it. Until the entire process provided in the bill is exhausted and a definite conclusion is drawn.

What happens to the judge in question in the meanwhile? That is not clear yet, but surely it will not be a comfortable situation for any judge to be in.

The second and more important problem is this: Can or should the judges of the supreme court and high courts dealing with constitutional matters and constitutional bodies day in and day out be told: “Watch your tongue. Watch your language. You can’t say or write an unwarranted comment (which is undefined) because it is a legal offence and you can be prosecuted!”

Take an example from the real life.

Years have passed since Arun Shourie of BJP and Janata Party leader Subramanian Swamy told the PM and CBI about the 2G scam and handed over documents regarding irregularities committed by the then telecom minister A Raja.

Swamy then approaches the supreme court, seeking permission to prosecute Raja. In the meanwhile, the newspapers go to town, exposing every bit of his wrongdoings. But nothing happens to Raja. He gets a second stint as telecom minister in 2009 and continues to hold office.

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

Following this Raja is asked to step down. Soon he is arrested by CBI and sent to Tihar jail, where he continues to live today.

Now apply clause 3 (fa). The supreme court judges’ comment can very well qualify as “unwarranted comment”!
 
Take a second example.
 
Hasan Ali, accused of money laundering and under investigation of the income tax department since 2007, roaming free with his alleged billions of dollars in tax havens and more than Rs 70,000 crore in tax liability until a supreme court bench hearing his case screams in March 2011: “What the hell is going on in this country?”
 
He is arrested and sent to jail.
 
Now apply clause 3 (fa) and see if this too amounts to the supreme court judges committing a legal offence or not.
 
There are many such cases where the supreme court has to talk tough to get the corrupt and the criminals holding high offices or positions of influence to be sent to their rightful place – the jail.
 
Suresh Kalmadi’s is another instance where the court had to intervene.
 
Consider a situation after the bill is passed by Rajya Sabha and becomes a law and the cases of Raja, Ali and Kalmadi are heard by the supreme court. Mindful of criminal offence they would be committing, the judges are too scared to express their anger or take the government to task.
What happens then? Raja, Ali and Kalmadi continue their free run. Free also to do what they are known to do best.
 
Of course, there could be instances where the comments of the court are highly questionable.
 
Take for example, the Karnataka high court’s recent outburst against DGP Shankar Bidari. Bidari had reportedly told the court that he was not “omnipresent and omnipotent like Saddam Hussain or Muammar Gaddafi”, to defend himself against the accusation of atrocities committed against tribals while he was leading a task force to nab forest brigand Veerappan. To this, as the newspapers reported, the 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 Hussain and Muamar Gadaffi). The court then upheld a tribunal’s order and struck down Bidari’s appoint as DGP.
 
One may say this comment was unwarranted.
 
But the point is: Should this be taken as a yardstick to beat every judge of the high court and supreme court? Should an exception be treated as the rule of the game? If yes, it will make Raja, Kalmadi and Ali ecstatic!
 
Is that what the bill is meant to do?
 
There is a strong reason to believe that this indeed is the real purpose of inserting clause 3 (fa).
 
When the bill was first formulated by the then law minister M Veerappa Moily in 2010, this clause wasn’t there. It came in on December 21, 2011.
 
And it was in response the recommendation of a parliamentary standing committee headed by Congress spokesman Abhishek Manu Singhvi. The report was tabled in Lok Sabha on August 30, 2011.
 
The relevant part of the committee’s report said: “The Committee feels that Clause 3(2)(f) should be expanded by specifically mentioning that judges should restrain themselves from making unwarranted comments against other constitutional/statutory bodies/institutions/ persons in open Court while hearing cases.”
 
Salman Khurshid, Moily’s successor, agreed, inserted the clause 3(fa) and got it passed by Lok Sabha amidst din over the Telangana issue.
 
Why did the parliamentary panel recommend such a thing? We reproduce here the entire argument to get a better view:
 
“During the deliberations some Members drew the attention of the Committee towards growing instances where judges have made unwanted remarks in open Courts against other constitutional/statutory bodies or persons who were not before them. In this connection, the Committee took note of judicial standard specified in the Para 4 of the schedule to this Bill and clause 3(2)(f) of the proposed Bill. Para 4 of the schedule to this Bill states that "Judgment should speak for themselves" and the clause 3(2) (f) of the proposed Bill provides that "a judge shall not enter into public debate or express his views in public on political matters or matters which are pending or likely to arise for judicial determination by him".
 
“The Committee discussed this issue in detail and felt that such instances of unwarranted and uncalled for remarks by the judges are unfortunate and should be avoided. The Chairperson of the Committee observed that "such unwarranted remarks create tremendous problems for legislature, specific individuals, and senior leaders.
 
“In this context, the Committee feels that there is a need to bring such behaviour of judges within the purview of the judicial standards. The Committee feels that Clause 3(2)(f) should be expanded by specifically mentioning that judges should restrain themselves from making unwarranted comments against other constitutional/statutory bodies/institutions/ persons in open Court while hearing cases”.
 
What does the panel say? That “judgment should speak for themselves” and that “such unwarranted remarks create tremendous problems for legislature, specific individuals and senior leaders”.
 
What are “such unwarranted remarks”? We are not told. What “tremendous problems” such remarks create “for legislature, specific individuals and senior leaders”, we are not told.
 
But the link and the provocation are obvious.
 
The move to insert clause 3(fa) came after the supreme court lashed out and forced the government to act against Raja, Kalmadi and Ali.
 
And that created the problem.
 
That leads to the next question: Should the supreme court and high court judges be gagged to keep Raja, Kalmadi, Ali happy? Should the judges be gagged to keep Manmohan Singh and his government, which refused to act against the accused on the plea of “coalition compulsion” or a simple “I didn’t know”, happy?
 
Is this bill then to protect Raja, Kalmadi and Ali?
 
It seems quite clear. But let it pass. There is even a bigger issue here.
 
When every attempt to gag the media has been thwarted, and rightly so (so far), in the name of freedom of expression and independence of media, shouldn’t the same yardstick be applied to the higher judiciary?
 
After all, there is little dispute that of the three pillars of our democracy, it is the judiciary alone that enjoys public trust.
 
Can we let that go by allowing politicians to play havoc with our democracy?
 
Think it over.