Category Archives: Polity

[Notes] The Judicial Standards and Accountability Bill, 2010

The Judicial Standards and Accountability Bill tries to lay down enforceable standards of conduct for judges.

The Bill seeks to:-

  • Lay down judicial standards,
  • Provide for the accountability of judges, and
  • Establish mechanisms for investigating individual complaints for misbehavior or incapacity of a judge of the Supreme Court or High Courts. It also provides a mechanism for the removal of judges.
  • The Bill requires judges to practice universally accepted values of judicial life. These include a prohibition on:

(a) close association with individual members of the Bar who practice in the same court as the judge,
(b) allowing family members who are embers of the Bar to use the judge’s residence for professional work,
(c) hearing or deciding matters in which a member of the judge’s family or relative or friend is concerned,
(d) entering into public debate on political matters or matters which the judge is likely to decide, and
(e) engaging in trade or business and speculation in securities.

  • Judges will also be required to declare their assets and liabilities, and also that of their spouse and children. Such declaration has to take place within 30 days of the judge taking his oath to enter his office. Every judge will also have to file an annual report of his assets and liabilities. The assets and liabilities of the judge will be displayed on the website of the court to which he belongs.
  • The Bill establishes the National Judicial Oversight Committee, the Complaints Scrutiny Panel and an Investigation Committee.  Any person can make a complaint against a judge to the Oversight Committee on grounds of ‘misbehaviour’.
  • Initial complaints will be made to the Oversight Committee, and they will be referred to the Scrutiny Panel.
  • A Scrutiny Panel will be constituted in the Supreme Court and every High Court. It shall consist of a former Chief Justice and two sitting judges of that court. If the Scrutiny Panel feels there are sufficient grounds for proceeding against the judge, it shall report on its findings to the Oversight Committee. If it finds that the complaint is frivolous, or that there not sufficient grounds for inquiring against into the complaint, it shall submit a report to the Oversight Committee giving its findings for not proceeding with the complaint.
  • The Oversight Committee will consist a retired Chief Justice of India as the Chairperson, a judge of the Supreme Court nominated by the sitting Chief Justice of India, a Chief Justice of the High Court, theAttorney General for India, and an eminent person appointed by the President.
  • If the Scrutiny Panel recommends investigation into a complaint against a judge, the Oversight Committee will constitute an investigation committee to investigate into the complaint. The inquiry committee will consist of not more than three members. It will have some powers of a civil court and also the power to seize documents and keep them in its custody.
  • The investigation committee will frame definite charges against the judge and shall communicate the same to the judge. The judge shall be given an opportunity to present his case, but if he/ she chooses not be heard, the proceedings may be heard without him present.
  • If the charges against a judge are proved, the Oversight Committee may recommend that judicial work shall not be assigned to the judge. It may also issue advisories and warnings if it feels that the charges proved do not warrant the removal of the judge. If the Committee feels that the charges proved merit the removal of the judge, it shall (a) request the judge to resign voluntarily, and if he fails to do so, (b) advise the president to proceed with the removal of the judge. In such a case, the President shall refer the matter to Parliament.
  • A motion for removal of a judge can also be introduced in Parliament by members of Parliament. In such a case, the Speaker or the Chairman can either admit the notice, or refuse to admit it. If the notice is admitted, the matter shall be referred to the Oversight Committee for inquiry.
  • The Bill exempts documents and records of proceedings related to a complaint from the purview of the Right, 2005. The reports of the investigation committee and the order of the Oversight Committee shall be made public.

Key Issues and Analysis

  • The key issue is whether the balance between independence and accountability is maintained by the proposed mechanism in the Bill.  The Oversight Committee has non-judicial members which might impinge on the independence of the judiciary.
  • The Bill penalises anyone who breaches the confidentiality of complaints.  It is questionable whether a penalty is needed for a frivolous complaint that remains confidential.
  • The Scrutiny Panel has judges from the same High Court.  This is different from the in-house procedure of the Supreme Court.
  • The Oversight Committee has non-judicial members.  The procedure of the Committee is not an in-house procedure of the judiciary.  It is not clear whether the power of the Oversight Committee to impose minor measures is constitutionally valid.
  • The Bill does not mention whether a judge has the right to appeal to the Supreme Court against an order of removal issued by the President after Parliament finds him guilty of ‘misbehaviour’.

Should Capital Punishment be Abolished?

The question of abolition of capital punishment has been the most debatable question and brings lots of emotion and sentiments. There are people who are in favour of abolition and there are others who try to defend capital punishment or death-penalty. As far as India is concerned, the Honourable Supreme Court of India in its 1980 judgement in Bachan Singh v. State of Punjab has given a Talisman that the death penalty should only be given in the “rarest of rare cases”. But judging the case as rarest of rare is in itself subjective and the Indian courts have had varied interpretations in various cases. There is ambiguity in the judgement from the beginning. Hence, this defence in favour of death penalty is really very poor.

Secondly, India is a party of International Convention on Civil and Political Rights that requires countries to move towards the abolition of capital punishment. However, much remains to be done as India has not yet ratified the Second Optional Protocol to the Convention and in Nov 2010, it even voted along with Saudi Arab and China in opposition to the UN resolution for a moratorium on the death penalty.

In this context, Report of Law Commission India setup in 1967, said that

Having regard… to the conditions in India, to the variety of the social upbringing of its inhabitants, to the disparity in the level of morality and education in the country, to the vastness of its area, to the diversity of its population and to the paramount need for maintaining law and order in the country at the present juncture, India cannot risk the experiment of abolition of capital punishment.

So, the general intellectual thought in this regard is against the abolition as they consider it a risk to the National Security.

However, we should also not forget that 139 countries world-wide have taken this risk and abolished capital punishment altogether.

Another reason for continuation of death penalty is the concept known as “public opinion”. However, irrational it may sound but it is the fact that cannot be ignored. In a judgment, Dhananjoy Chatterjee v State of West Bengal, that had led in 2004 to the last public hanging India has witnessed so far, the Supreme Court stated:

Imposition of appropriate punishment is the manner in which the courts respond to society’s cry for justice against the criminals. Justice demands that courts should impose punishment befitting the crime so that the courts reflect public abhorrence of the crime.

But as Arthur Chaskalson, former Chief Justice of Supreme Court of S.Africa reiterated,

If public opinion were to be decisive there would be no need for constitutional adjudication.

Now, coming to my opinion on abolition of Capital Punishment from India is concerned, I am in favour of abolition. Not because we have any legacy of non-violence, but just because we have moved much ahead of the period of renaissance and enlightenment, and we must show that not only time has passed but the ancient and medieval approach to deal with punishments has also been left behind. As Pamela Philipose has said in her essay titled Is this real justice?,

The imminent extinction of a sentient life endowed with thought and memory, linked intimately to the lives of others, is a fearsome thing.

Capital punishment should be really the fearsome thing. It is like tit-for-tat, an eye-for-an-eye and as Gandhiji said it will make the whole world blind.

P.S.:- I was having discussion elsewhere and I put forward to one of the replies:-

You will be shocked to know that as per the report of Amnesty International that more than two-thirds of the countries in the world have now abolished the death penalty in law or practice. The numbers are as follows:

Abolitionist for all crimes: 97
Abolitionist for ordinary crimes only: 8
Abolitionist in practice: 35

Total abolitionist in law or practice: 140
Retentionist: 58

So, updating my stat, 140 countries have abolished the death penalty and this number is not declining. It is increasing year after year since 1976, when Portugal abolished the death penalty for all crimes.

It is true that India had not abolished capital punishment and retained the 1861 Indian Penal Code providing for the death penalty. But it was not that this idea was not given any thought. If you must know, I would like to quote during Constituent Assembly debates, a member of Constituent Assembly while opposing an amendment demanding partial ban on capital punishment, said,

I think that with the growth of consciousness, with the development of society, the State should revise a punishment of this nature…

So, at that point we had thought that with the passage of time, we will be making changes to the nature of punishment. Why we still continue with same punishment which we do abhor? We hate the British Raj for hanging Bhagat Singh, Sukhdev and Rajguru and we hate the Raj for the hanging of Surya Sen and many such martyrs. Most of you will agree that they should not have been hanged. But if that is the case, then why we still continue with capital punishment?

P.P.S.:- This is in reply to the following:-

No I don’t agree with this. Supreme Court has already told that capital punishment should be given in the cases involving when a person encourage a child or mentally ill person to commit suicide , or when a army person wage war against own country , or when a person is found guilty of terrorist activities.
As you can see the offenses under consideration are very serious and deserve nothing but capital punishment..
It is very easy to say that capital punishment is inhumane but ask from the families of 166 people who were killed by Kasab and each and every of them will say yes to his hanging.
Who can forget kandhar hijack had we killed maulana Masood Azharpreviously it would never had occurred because hijackers demanded the release of him and when he was set free he stung us again and again in the form of Indian parliament attack and numerous killings in Kashmir.So it becomes very important that what we want : death of hundred of Innocent people or death of one person who is responsible for killing so many innocent people ??

Moreover Supreme Court has already stated that capital punishment will be given only in rarest of rare cases so if we have trust in out judiciary then we should give them the power to decide what offenses deserve capital punishment for the betterment of this society..

It is true that Gandhiji said that an eye for an eye will make the whole world blind but sometimes when a single person is taking out eyes of many innocent people it is advisable to take his eyes so that he may not turn the whole world blind !

Why are you considering capital punishment as co-terminus with the scale of justice? When we talk about our Heroes like Bhagat Singh, Surya Sen, etc. we call that hanging was the wrong thing to do, but in the view of “Imperialist” Raj, they were terrorist and murderers. Why cannot we have the same scale? Why cannot we hold ourselves to higher standards of justice than those followed by our Imperial masters? Why cannot we move towards the idea of restorative justice rather than retributive justice?

P.P.P.S:- To the above post, I got the following reply:-

do u think the consciousness has really grown?? the society has really developed??. The consciousness has to grow among the people. I never said that the countries which have not abolished death sentence have not given a thought about it. I never said that the nature of punishment need not change. I was indeed saying that death penalty should not be abolished in certain cases where the crimes tend to be very brutal. Adding to the fact that we condemn the British for hanging Bhagat singh, Raj guru etc.. will u really oppose if India decides to hang Ajmal Kasab today?? or will awarding a life imprisonment to Kasab really help in reducing the terrorism?
And also, while many countries are abolishing death sentence, India, the birth place of Mahatma Gandhi, has not yet abolished it. Is it because we don’t know the meaning of humanity??

I would like to say what Justice A K Ganguly, Honourable member of Supreme Court of India said. He termed the award of death sentence as “barbaric, anti-life, undemocratic and irresponsible” which is “legal” in the prevailing judicial system. He further said that the Constitutional guarantee of right to life cannot be subjected to “vague premises”. The vague premise in question is doctrine of the crime falling in the’rarest of rare’ category in awarding the death penalty.

The issue is not whether we know the meaning of humanity or not. The issue is whether we practice humanity or not.

For the case of Kasab, I would like to quote what Bhagat Singh said in his last petition to the Governor of Punjab,
As to the question of our fates, please allow us to say that when you have decided to put us to death, you will certainly do it. You have got the power in your hands and the power is the greatest justification in this world. We know that the maxim ‘Might is right’ serves as your guiding motto. The whole of our trial was just a proof of that. We wanted to point out that according to the verdict of your court we had waged war and were therefore war prisoners. And we claim to be treated as such, i.e., we claim to be shot dead instead of to be hanged.

The doctrine of the crime falling in the’rarest of rare’ category in awarding the death penalty is a “grey” area as its interpretation depended on individual judges. It is just another version of Might is right!

Judicial Reforms – My Take

I was going through a post of my friend Shailendra. And I tried to put few suggestions. While commenting there, I realized that I wrote enough that it can be transformed into a post. So here are my suggestions:-

1. Judiciary takes lot of holidays. For eg Jabalpur High Court will take 88 holidays in 2011. 52 Sundays, 12 Saturdays, summer holidays from May 23 to June 17, winter holidays from 26 December to 31 December and other festival holidays. Sometimes I think is our Judiciary running a school? When there are so many pending cases, I do not find any justification for so many holidays. These should be curtailed. If you want to know holidays that Supreme Court of India takes click here.

2. Many a times it has been observed that judges are not punctual and sometimes lawyers come late. This should be strictly handled and stringent action should be taken against the erring judges and/or lawyers. This will help in ensuring that court’s time is utilized well.

3. The time required to complete a particular kind of case should be pre-defined and it should only be extended on reasonable reasons. Judges must ensure that trial follows the time limits. Also, there should be time limit for a particular hearing of a case, say 1 hour in each hearing.

4. There are many cases which have a similar point or are of similar nature. They should be clubbed and a single judgement can be used for them. Similar recommendations as far as I remember was made by some Law Commission also.

5. Old cases like the one you mentioned should be separated from the rest of the cases and should get prioritized handling or could be assigned to special tribunal to decide the matter without any in-court hearing unless absolutely necessary.

6. Since judiciary doesn’t have much time arguments in courts should not be prolonged and until and unless absolutely necessary oral argument should not happen. In place of that written legal notes and arguments can be submitted to the court. The judge should be empowered to decide which cases are of absolute importance and should then allow the oral arguments. Cases like interpretation of Constitution can be regarded in this category.

7. Laws should written in very clear and specific manner. “Notwithstanding anything detailed herein and blah blah…” only adds to confusion and creates loop-holes. The existing laws should be written so that a lay man could interpret it. It will reduce the number of cases that reach the court and get involved in the cycle of interpretations and counter-interpretations.

8. Most of the cases filed under civil code can be transferred to tribunals and should reach courts in case of question of interpretation or as appeals.

9. Similarly, judgements should also be clear and should not leave any questions of interpretations.

10. Bars should be severely warned against going on strikes during the working hours and days of the courts.

11. Latest technology can be of great help for the courts. Use of video conferencing, etc can help the time of court while waiting for government officials, MPs, MLAs, ministers and others to come and give witness which most of the time leads to adjournments. This way even if they are ill they can take time out to be present for an hour for the hearing as I above mentioned time of a hearing should also be reduced to say 1 hour in my point 3 above.

12. Information Technology can be used to prepare a database to store cases, judgements, etc and can be used for immediate help in cases which look similar to a previous case which was solved. A good reporting tool can immensely help in this. IT if used intelligently can create wonders for the improving the productivity and efficiency of the cases.

Electoral Reforms

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In June this year (2011), 7th Regional Consultation on Electoral Reforms  was held in Guwahati. A number of measures have been proposed by various committees on different issues.  I am just copying them from its press release for ready reference. These measures, including the ones proposed by previous Committees, on the issue of Electoral Reforms are:

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Right to Property Debate

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In recent times, there have been multiple incidents where farmers were protesting against the Government as it took away the land from them without paying the adequate compensation and against the wishes of many farmers. The whole debate about Right to Property needs to be re-initiated under this background. The Right to Property, which was enshrined in the original Constitution of India, as Fundamental Right should be re-instated by voiding the changes made by 44th Amendment Act of 1978 in this respect.

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Need for Sex Education in Schools

I was not shying away from this topic. Yes, it is late, but better late then never. I was going through my notes on the subject when I realized that I have not posted anything on this topic. I talked about Social stigma of an unwed mother, but this topic should have come somewhere at that time only. I wrote that post in May 2009 and at that time only in April, a parliamentary committee had put forward his stand on the issue.

The committee recommended that there should be no sex education in schools. The committee itself refused a power point presentation on the question “after going through the hard copy because of its explicit contents.  The Committee felt that it was not comfortable with it and could be embarrassing especially to the lady Members and other lady staff present.”

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My Political Ideology

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The other day while reading “India after Independence” by Bipan Chandra, I was overwhelmed by thoughts about India and its politics. Soon I was thinking about my political ideology and myself. I have always been confused about this and my opinions in favour of any political ideology have been very frail and feeble. I have always been unsuccessful in deciding which ideology interests me and since the day I have started understanding politics I have been indecisive about my political loyalty.

While discussing various issues in different fora – online and offline – I have come across people who subscribe to a particular ideology and are religiously loyal to a particular political party. There have been people whom I can easily term as ‘fanatics’. They fail to understand that there can be difference of opinions and go a little far from civilized form of discussion.  What I fail to understand is that when we say nothing in this world is perfect, how a person can form his political ideology based on a single direction given by that ideology and how a person can be truly loyal to a single party and follow its ideologies under any situation. Daily I receive several threatening and abusive comments on my blog. Thanks that I have the power to moderate and trash such comments.

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