(Edited Picture of PM with CJI. Image Courtesy: PIB)
Did Chief
Justice of India (CJI) T. S. Thakur breach the Judiciary’s own voluntary code
of conduct (CoC) when he ridiculed Prime Minister Narendra Modi’s Independence
Day (ID) speech?
The answers to
this and certain other prickly questions on judicial accountability lie in the
court of CJI. And national enlightenment on these issues can come only if civil
society files public interest litigation (PIL) in the Supreme Court (SC). A Big If indeed.
To best of my
knowledge, Vocal NGOs have not yet implored CJI to give verdict on
applicability of CoC on him? Has PIL industry petitioned SC to admonish the
Executive-Legislature combine to not delay further enactment of judicial
accountability law?
Clarity on this
count can also emerge if Modi Government advises the President to seek SC’s
opinion on these issues. Another Big If!
A Layman’s
reading of CoC named ‘Restatement of
Values of Judicial Life’ (RVJL)
shows that Justice Thakur prima facie violated two of its 16 principles when he
derided PM’s speech. These are: 1) “A Judge shall not enter into public debate
or express his views in public on political matters or on matters that are
pending or are likely to arise for judicial determination.” 2) “Every Judge
must, at all times, be conscious that he is under the public gaze and there
should be no act or omission by him which is unbecoming of the high office he
occupies and the public esteem in which that office is held.”
Another occasion
when CJI deviated from former principle was during the last winter season. Justice
Thakur first endorsed #OddEven scheme of Delhi Government outside the Court. He
later trashed PIL against the scheme, which rides roughshod over citizens’
right to earn one’s livelihood and physically challenged persons’ right to
travel safely. After all, these rights can be interpreted as right to life just
as right to fresh air is interpreted to rationalize the scheme.
Civil Society
might well dismiss all this as nitpicking of no consequence in the absence of
statutory CoC.
SC had
unanimously adopted RVJL/CoC in its full court meeting held on 7th
May 1997. In April 2015, Chief Justices’ Conference discussed agenda item
‘judicial values – a need for re-examination’ and tersely “resolved to reiterate the Declaration of Restatement of Judicial
Values, 1997.”
Notwithstanding
this reiteration, RVJL enforcement lacks transparency. Instances of it being invoked against deviant
judges are rare. RVJL is not even mentioned on SC’s website!
Compare this with
Pakistan apex court. The latter’s
website not only hosts its CoC but also disclosed the fact that it has been
notified through a gazette.
It is apt to
note that Law Commission, in its
report on lapsed Judges (Inquiry) Bill, 2005 submitted in January 2006,
recommended that CoC to be issued by Judicial Council under the proposed law
should be published in the Gazette of India.
LC also recommended
that “till such time as the Judicial
Council comes to be constituted under the proposed Bill of 2005 and such
Judicial Council publishes a Code of Conduct, the Bill must provide that the
‘Restatement of Values of Judicial Life’ adopted by the Supreme Court in its
Resolution dated May 7th, 1997 shall be treated as the Code of Conduct for the
purposes of the proposed law.”
The Report continued: “It should also contain a provision that the Code of Conduct could be modified from time to time by the Judicial Council by amendments that could be notified in the Official Gazette.”
The Report continued: “It should also contain a provision that the Code of Conduct could be modified from time to time by the Judicial Council by amendments that could be notified in the Official Gazette.”
Administrative
Reforms Commission (ARC) echoed LC’s concern for RVJL in its 4th
report on Ethics in Governance submitted in January 2007. Under the chapter ‘Ethical
Framework for the Judiciary’, ARC observed: “mere
prescription of a Code of Conduct is not an end in itself. Along with the Code
of Conduct, a mechanism for enforcing the code needs to be evolved. It would be
desirable to designate a senior Judge of the Supreme Court as the ‘Judicial
Values Commissioner’ (JVC).”
ARC added: JVC should be empowered to enquire into cases
of violation of the Code of Conduct and report the matter to CJI for taking
action. JVC should have jurisdiction over the judges of the Supreme Court, and
members of other judicial and quasi-judicial bodies. A similar institution
should also be constituted at the state level.
Though UPA
Cabinet accepted ARC recommendation relating to JVC, it is not known whether
the Government communicated it to SC and if so, whether JVC was notified.
Google search for Judicial Value Commissioner throws up disappointing result.
When UPA
returned to Power in 2009, it decided to substitute lapsed Judges (Inquiry)
Bill with the Judicial Standards and
Accountability Bill (JSAB), 2010. The Bill incorporated RVJL into proposed judicial
standards.
A proposed standard
that has direct relevance to Justice Thakur’s dig at PM’s ID speech is worth
pondering. It reads as: “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, in general, or at the time of hearing matters
pending or likely to arise for judicial determinations.”
This stipulation
is of no consequence at present as JSAB lapsed with the dissolution of 15th
Lok Sabha in May 2014. NDA Government has disclosed its intent to resurrect the
Bill but has not unveiled the revised bill, factoring in suggestions of
different stakeholders including Parliament Standing Committee (PSC).
In its report on
JSAB submitted during August 2011, PSC recommended: “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.”
The urgency for
independent oversight of judicial standards can be driven home well by
recalling what legendary Leftist MP, late Bhupesh
Gupta, stated during August 1972 while participating in a debate on The
Constitution (13th Amendment) Bill, 1972.
Mr Gupta
observed: “The moment you (judges) sit on
the Bench you do not become angels or divine creatures. You see, you are either
taken from the Bar or you are recruited directly or promoted from below or some
such method is there. Therefore, you have all the virtues and vices associated
with others. You carry them with you, you carry your past with you, you carry
your qualifications and attendant disqualifications, you carry all of them with
you.”
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