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| JUDICIAL PROPRIETY AND TEHELKA | |
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By: Rajeev Dhavan The Hindu November 29th 2002 India needs a policy of embargoing post-retirement jobs for judges whilst increasing their retiring age. THE JUDICIARY is in the news in ways that do not do it credit. Beginning with the `defeated' Justice V. Ramaswamy impeachment in the early 1990s, the last decade portrays scandals. These include the Bombay Pay-off Scandal of 1990, the controversy over the Bombay High Court Chief Justice Bhattacharjee receiving large "foreign" royalties in 1995, controversies, however founded or unfounded, over Justices Punchi and Anand - both Chief Justices of India - and Justice Bharucha's declaration that 20 per cent of judges are corrupt. The year 2002 has been a bad year. In Punjab, High Court judges are accused of having received favours from the Chairman of the Public Service Commission. In Rajasthan, the allegations countenance a High Court judge and his Deputy Registrar soliciting sexual favours. In Karnataka, allegations canvass compromising sexual conduct involving High Court judges. In Patna, there are serious allegations of corrupting the legal process by lawyers and the registry. Public confidence is shaken. Judges reign and rule - with little external effective oversight over their conduct. Judicial independence cannot encompass judicial lawlessness, rampant corruption or conduct unbecoming. Justice Ramaswamy's impeachment suffered defeat in Parliament. The Supreme Court's Committee opined he could not be denied work. In Bombay, resignations took place. Using the `transfer' policy - now abandoned - does not satisfactorily deal with serious allegations against judges. Corruption is transferred, not dealt with. In the mid-1990s, the Supreme Court felt that the Chief Justice of India (CJI) could use his prestige to persuade judges to resign or not attend court, But, such an approach eludes results if the delinquent tells the CJI to mind his own business. Witness the cases of Hastings and Clairbourne in America where judges refused to demit office until impeachment - in one case, even though the judge was imprisoned! Informal methods have failed; and do not command confidence in India. An intermediate method has to be created so that judges are answerable and can be disciplined without compromising their independence. But, it is not just a question of disciplining judges; but, also of dealing with complaints against them in a swift and effective way. Such mechanisms exist for the lower judiciary, but not for High Court and Supreme Court judges. From the supercession controversy of 1973 when three judges were superceded for the post of CJI, there have been calls for a National Judicial Commission both to (a) make judicial appointments (which after the 1982, 1993 and 1998 judgments are - and, that too, not quite satisfactorily - in the hands of a conclave of Supreme Court judges) and (b) deal with complaints, corruption and misconduct. But, ongoing suggestions for a National Commission have fallen on fallow ground. Having wrested the patronage of appointment, the judges have dragged their feet on issues of judicial discipline except to produce unenforceable codes of conduct. What are required are constitutional and statutory amendments. Recent history shows that where there is a will, constitutional amendments are possible. But, there is a lack of political and judicial will to introduce changes. Today, judges collectively and in judicial orders make all kinds of suggestions on their pay, salary, perks and other things. But no consensus suggestion to interrogate judicial indiscipline emerges with credible clarity. Individually India's Chief Justices provide evasive and contradictory answers. In the midst of all this comes the controversy over the commendable resignation of Justice Venkataswami who was the sole Commissioner of the Tehelka Commission. Three issues arise. The first is: what went wrong? Something did. Sometimes judges do hold two post-retirement posts - without conflict or demur. But, the Tehelka Commission was not just an inquiry but an inquisition in which the Government had a massive political stake. The proposal to give another assignment to Mr. Venkataswami whilst he investigated Tehelka and its discontents should never have been made. The next slip up was Chief Justice Bharucha's recommendation behind which the Government seeks refuge. No less, the offer of appointment should have been declined. This is not a case of conspiracy, corruption or misconduct. Mr. Venkataswami integrity is beyond dispute. The famous Pinochet case (1991) was re-heard because Lord Hoffman had broad links with a charity which, though not before the 'Lords', had a stake in the cause. In the Curative Petition case (2002), the Indian Supreme Court drew sustenance from the `Pinochet' example on the premise that justice must not only be done but always appear to be done. This sets the tone. Mr. Venkataswami has led by example. Purity is as important as cleanliness. At least one present judge of the Supreme Court declined an above board invitation to a seminar from an American university on the basis that it was unacceptable that anyone other than the Government of India should pay for such trips. This sets a standard. The second issue that arises out of Tehelka is whether Mr. Venkataswami can simply be replaced by another judge. There is a stateable case that he cannot. Section 8A of the Commission of Inquiry Act, 1952, was amended in 1971 to permit a Commission to continue if a vacancy arose in a multi-member Commission. The assumption of continuity would survive because a member or members would continue. But, section 8A is inapplicable for a single-member Commission or where an entire Commission ceases to exist. It becomes non-existent (non est) and ceases to function (functus officio). Continuity is broken. Replacing Commissions afresh contrives its own politics. There is an even chance that any replacement appointment would be challenged to the discomfiture of any new appointee. This does not mean that the records of the Commission are not available for public use. So far, the only real public interest part of the Commission's work was over the military deals - which was heard in camera. These can be examined by a Joint Parliamentary Committee as raw evidence to interrogate lapses. The other aspect of the Commission's inquiry investigates Tehelka's journalistic conduct and wild, unfounded allegations that Tehelka tried to destabilise the stock exchange and personally benefit Tehelka's people and financiers. A lot of this is humbug. The `journalistic' ethics issue does not need a Commission's wisdom, but along with the accountability of the electronic media should be generally examined by public discourse. There are enough legal provisions to deal with `destabilising' frauds; but, the Government knows that they do not have a credible leg to stand on. On this basis, the Tehelka Commission needs to be wound up; but the `defence deals' examined by Parliament. The third issue relates to the desirability of post-retirement appointments for judges. There is a dilemma here. Although Inquiry Commission reports generally gather dust, there is a public faith that only judges should head such inquiries - indeed, that is what made the T.T. Krishnamachari and Kairon inquiries of the 1950s credible. The answer lies in less inquiries and carefully chosen incumbents. Today, an inquiry is a general panacea to avoid any public allegation. The Commission process has been devalued. Several statutes - such as the Human Rights and others - necessitate judicial appointments. Such jobs cannot be multiplied as inducements. India needs a policy on embargoing post-retirement jobs for judges whilst increasing their retiring age. The Public Commission procedure came to the fore in 1921 after the Marconi scandal around 1918 because Parliament could not be wholly trusted. Parliament needs to be more rigorous and credible - even though the nation was let down by the Bofors Joint Committee which wrongly absolved the, then, Prime Minister and others in 1987.The Indian judiciary has to confront its public image. India's judges are massively powerful. They both compensate bad governance as well as fulfil the judicial quest for power. Judges may err in their judgments. But, if confidence in the Judiciary abates, Indian governanc is in peril. |
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