PUCL Bulletin, February 2005

A judicial commission to deal with matters of judiciary

-- By Rajindar Sachar

A brazen tactic to bury Lok Pal Bill has been worked out by UPA Govt., if the press statement of Law Minister represents the view of the Govt. I am referring to the outrageous proposal which has never been put forward since 1968 when this topic is being discussed in the Parliament even by the extreme critics of judiciary, namely, that the Judges of High Court and Supreme Court should be included in the purview of Lok Pal.

The Supreme Court itself has emphasized that the society’s demand for honesty in a judge is exacting and absolute. No excuse or no legal relativity can condone such betrayal. A single dishonest Judge not only dishonours himself and disgraces his office but jeopardizes the integrity of the entire judicial system.

A legislator or an administrator may be found guilty of corruption without apparently endangering the foundation of the State. But a Judge must keep himself absolutely above suspicion, to preserve the impartiality and independence of the judiciary and to have the public confidence thereof”.

Realising that independence of judiciary being one of the basic features of our Constitution, a grave responsibility lies on it to see that no doubt is cast on its honest functioning. But then Judges do not come from another planet – they come from the same stock as the rest of society and action of some of them do bring shame to us.

But no protection is sought for them – rather Supreme Court has ruled in Veeraswamy’s case that High Court or Supreme Court judges can be prosecuted under Prevention of Corruption Act after obtaining sanction from the Chief Justice of India, just as for a civil servant sanction has to be obtained from his appointing authority. But contrast this reaction with a failed attempt made by members of Parliament some time back to pass a legislation to say that legislators are not public servants with a view to escape from the purview of Prevention of Corruption Act.

Independence of judiciary is the most essential characteristic of a free society like ours. It is the livewire of our judicial system. In order to effectuate this a methodology for appointing proper and fit candidate to a higher judiciary and also for removal is necessary.

It is for that reason that there is now near unanimity amongst legal and political circles that in the matter of appointments, transfers, removal, disciplinary matters of Higher Judiciary, the present position of Supreme Court alone being the exclusive mechanism is no longer acceptable. There is also near unanimity that National Judicial Commission (N.J.C) should be constituted to deal with all these matters. It is not a revolutionary suggestion – rather it is to be found in number of countries.

There is now insistent demand from the public that in matters dealing with appointments and other misdemeanors by Higher Judiciary needs to be carried out by an Independent Body using transparent criteria, instead of the present unsatisfactory mechanism shrouded in secrecy and controlled by a small cabal. It is for this reason that National Commission to Review the Constitution headed by former Chief Justice of India Mr. Justice Venkatachaliah has also advised the constitution of a National Judicial Commission.

The N.J.C. should have C.J.I (Chairperson) two senior most Supreme Court Judges, senior most Chief Justice of High Court, Minister nominated by the Prime Minister and leaders of opposition in both houses and a senior member of Bar to be nominated by other members of the Commission. A retired judge of the Supreme Court could be the whole time member of the commission.

A judge of a High Court is not like any incumbent in service. A Judge of a High Court is not to be treated as one of the highest paid service in the country and the rules relevant for assessing the performance and capability of a Government Official cannot be made applicable to the Judges of the High Courts. Of course, this in no way absolves then of then of their obligation, moral as well as constitutional to devote the best part of their time to their work and to keep up and uphold the best tradition of the judiciary in the matter of impartiality, objectivity and independence from any influence. Judges themselves are now acutely aware of the public dissatisfaction with the judicial system. This awareness, I am quite sure, is the biggest guarantee that serious efforts will be made by all. But then everything is not all rosy. So I am all for proceeding against those judges against whom even a reasonable suspicion exists. It is not correct to say that the only remedy is impeachment. A mechanism like a National Judicial Commission will be able to impress upon the concerned judge either to desist from such activities or remit that office in disgrace.

The Law Minister’s snide that impeachment provision has failed is dubiously correct and he needs to be reminded that it was because of the opposition by his Congress Party motivated by extraneous considerations that let the people down in that instance.

Lok Pal Bill could become law immediately by Parliament passing it. But if the weird suggestion of Law Minister is to be carried out, the Constitution will have to be amended, and approval obtained from a majority of State Legislatures. Such a time consuming process will necessarily take decades. This, of course, is not a deterrence to the Law Minister, because the real and sole motive behind this dangerous suggestion (which trespasses on independence of judiciary) is to find an excuse to avoid passing Lok Pal Bill and to give relief to 100 tainted MPs including some of the powerful Cabinet Ministers.

This exercise by Law Minister would make a mockery of the assurance given by Prime Minister as recently as September 2004 that ‘UPA Govt. would lose no time to enact the Lok Pal Bill and that the need for it is more urgent than ever’.

A person in street will wonder whose word is to be accepted. The Prime Minister or the self interest and safety of tainted Ministers speaking through Law Minister.

When at his first press conference the Prime Minister resoundingly refuted the “insinuation that there are two power centres, it gave the assurance that Dr. Manmohan Singh had jumped successfully to land in Prime Minister’s chair. Is that hope to recede by the latest antic of his Law Minister – the people wait for an answer from the Prime Minister. – January 9, 2005


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