A turf war appears to be on – the sequence of events seems to support this view. Whether kick started by the activists against the beneficiaries of telecom licenses, or the efforts of the Revenue attempting to widen its net to address fiscal deficit issues, the Judiciary and the Government are in a faceoff mood. Take the Vodafone Judgment and the kneejerk reaction in the Union Budget in the aftermath – much has been written about this, and not just by me on this page- it has assumed the proportions of a serious global investment issue which the nation will have to deal with and one wonders whether the release of the Foreign Investment Policy update by DIPP has been delayed on this account.
There are other contemporaneous developments, such as the Judicial Standards and Accountability law being one of the first Bills to be passed by the Parliament in this session, intended to lay down standards and provide for accountability of Judges of the Supreme and High Courts, in seeking to establish credible and expedient mechanisms for investigation and removal of Judges and questioning the current procedure by which judges are selected and appointed by the Collegiums on “undisclosed criteria”. The Judiciary have also claimed immunity from the applicability of the Right to Information Act and criminal investigation, except without prior permission of the Chief Justice of India. Some Judges have been reportedly reacting with a contempt notice against any criticism. This feeling is in the backdrop of Justice Sen and Dinakaran’s cases.
There is no doubt that Judges have to abide by a strict code of ethics, and the aberration if any, is in the rare exceptions. And it’s imperative that this impression should be dispelled.
But the danger of the Bill lies not so much in its contents but in its possible misuse and implementation. It has the potential to revive the concept of the Committed Judiciary and the intervention in judicial appointments. A Committed Judiciary, is what was sought to be created during the Emergency to ensure the supremacy of the Executive, with the Judiciary acting as a rubber stamp in its commitment to the Government’s policies in interpreting the law in a manner that would not conflict with state actions. Pausing here for a moment, it’s important to keep in mind that the mooting and drafting of a law is in the Executive’s domain -- and the law is driven by the ideology and aspirations of the power in party, targeting their vote bank – which is standard in a democracy, but that need not always translate as being beneficial for the nation and its citizens. Laws are made by the legislature and the Judiciary does not have law making powers. Its duty is to implement and interpret the law in administering Justice. The Judiciary’s duty is to protect and safeguard the rights of persons aggrieved by the arbitrary acts of the state, and interpret laws passed by the legislature, their legality and enforceability. In doing so, the Judiciary can strike down a law, or any part thereof. And no one institution is subordinate to the others.
These are the checks and balances envisaged in our Constitution and all these institutions are entitled to a high degree of independence. What is being perceived as a watchdog role of the Judiciary is proving to be irksome to those in power. Hence, Judges are being called upon to disclose their assets, which in my view is a win-win , as this transparency will enhance their credibility , put an end to all insinuations in the media or otherwise.
As are the restrictions on family members benefitting from preferential treatment. But the powers which are sought to be vested in the Investigation Committee in dealing with misbehavior and the wide range it seeks to cover is likely to be abused with complaint being filed by litigants any time an adverse order is passed. The Oversight Committee having Non Judicial members may not work the way it is intended to, an may cause serious damage to the independence of the Institution. The powers of this Committeee extend to making a Request to the President in having the Judge removed. What recourses does the Judge have? And how can this Committee’s decision be questioned? These need to be addressed. Otherwise witchunting of Judges may assume uncontainable proportions and the consequences could be potentially disastrous for the nation.
Kumkum Sen is a partner at Bharucha & Partners Delhi Officeand can be reached at kumkum.sen@bharucha.in
