“What the hell is going in this country?” thundered a Supreme Court bench on 3 March, 2011, critisising the Centre for inaction against black money hoarders.
“The same minister is continuing. Is this the way the government is functioning? Is this rule of law?” Supreme Court Justice A K Ganguly on October 29, referring to then Union Telecom Minister A Raja, while hearing the 2G spectrum case.
Judges making similar remarks out of surprise, disgust and shock may soon become a thing of the past. Soon they will be able to express their opinions only through their orders and not verbally in court. While in court, they will behave only as judges and not as citizens of the country who feel aghast and helpless by the sorry state of affairs.
The Judicial Standards and Accountability Bill 2011 (clause 3 of the chapter dealing with judicial standards to be followed by judges) bars the judges from making any unwarranted comments against the conduct of any constitutional or statutory authority, statutory bodies, institutions, officers belonging to these institutions or on any matters which are pending or likely to arise for judicial determination. The Bill has been passed by the Lok Sabha.
While there have been debates on judges making candid remarks in court, this is the first time that a law in the making, is talking of code of conduct for the judges.
Not surprisingly, the clause has not gone down well with the legal luminaries.
“Who is going to decide what is unwarranted? What is an appropriate comment for you might not be the same for me. This clause is totally uncalled for,” said JS Verma, former Chief Justice of India.
Justice Santosh Hegde, a former Supreme Court judge who served as the Karnataka Lokayukta, said though there was a need for judges to be cautious while commenting during the course of the trial and at the end of hearings, there was no need to say the same in a law.
“It goes without saying that judges are not supposed to make unwarranted comments. But inserting the same as a clause in legislation is going a bit too far. At best, it should be left to the judge,” says Hegde.
RS Sodhi, former Delhi High court judge, said the clause reminded him the days of a public school where students were governed by prefects.
“It is true that there are judges who go wayward but it is unfair to paint the whole judicial system as irresponsible. It is undermining the authority of the chair,” he said.
But are judges going too far? Have they crossed the ‘Lakshman rekha’ which made Parliament gag them through an Act?
There are instances showing that many times the commentary in a court of law is based on ‘perceptions’ rather than ‘proof’. A few examples:
“The whole government machinery is corrupt, whether at the Centre or in the States. They [senior officials] don’t apply their mind, rather they don’t have a mind. They don’t have guts to differ with the opinion of the clerks.” – Justice B.N. Agarwal of the Supreme Court in 2008.
“You are not behaving like a lawyer. You are arguing like a street urchin. What are we coming to?” -Justice BN Agarwal of the Supreme Court to senior counsel Shanti Bhushan in 2008.
“In this country you need huntering (sic) to make you work.” – a Supreme Court bench in 2008 .
AG Noorani, eminent expert on constitution and law, dissected the remarks made and language used by the Supreme Court judges in various cases including the 23 January, 1999 murder of Graham Staines and the Afzal Guru trial. He noted three ‘disturbing’ aspects about the apex court’s pronouncements.
The court, according to him, has been consistently illiberal n certain recognised categories of cases including the Terrorist and Disruptive Activities (Prevention) Act (TADA), the Prevention of Terrorism Act (POTA) and the Armed Forces Special Powers Act, 1958.
Secondly, it deployed florid rhetoric, reflective of patriotic zeal, while giving short shrift to the citizen’s rights.
“Lastly, besides usurping powers which do not belong to the judicial office – on which a thorough expose is overdue – judges of the Supreme Court feel themselves free and utterly unrestrained in their off-the-cuff remarks on everyone else – lawyers, legislators, authorities, almost anyone,” noted Noorani.
About the intemperate, sweeping and ‘utterly uncalled for’ (sic) remarks made by the men sitting on the bench, Noorani said, “Whether made in the course of the hearing or at the end of it in the judgment, they serve only to affect the dignity of the judicial office. On the other hand, a stricture that is measured and necessary enhances the dignity and authority of the court and of the judge, personally.”
Every time media reports about the judges’ bad temper at display, says he, judges squirm with embarrassment and complain of the report, not unlike the manner politicians do.
But the Judicial Accountability bill is far from fixing the problem. For instance, it is silent on the definition of ‘unwarranted’ comments. All it says is that anyone can complaint against the judge making an unwarranted comment to an oversight committee which may or may not forward the complaint to an investigation committee. In the meanwhile, what will happen to the judge in question? It remains unexplained.
And the legislation is as vague on other areas of concern in the judiciary like corruption, a fact that has been pointed out by lawyer Shanti Bhushan.
“On the other hand, there is nothing in the Bill to tackle corruption in judiciary. That is the need of the hour and not a clause telling judges how to behave in court,” says former law minister Shanti Bhushan.