Latest news with #Judges(Protection)Act
Indian Express
13-06-2025
- Politics
- Indian Express
Justice Yashwant Varma case: Peer review is the proper channel
Arghya Sengupta begins his book Independence and Accountability of the Higher Indian Judiciary by juxtaposing the views of Jawaharlal Nehru and Justice Y K Sabharwal. Nehru upheld Parliament's supremacy, arguing that the judiciary could advise but not obstruct the legislative will in shaping the nation's future. In contrast, Justice Sabharwal underscored the judiciary's expanding role in securing good governance, highlighting how the Supreme Court has intervened in areas like environmental protection, electoral reform, and constitutional amendments to ensure the rule of law prevails. This tension reflects a fundamental shift. The recent disclosure of cash recovered from the official residence of Justice Yashwant Varma has triggered a flurry of reactions: Vice President Jagdeep Dhankhar raised concerns about the absence of punitive outcomes following an internal inquiry and cast doubts on the legal sanctity of in-house procedures. Following intervention from the Rajya Sabha, the SC dropped its inquiry into the alleged hate speech made by Justice Shekhar Yadav, sitting judge of the Allahabad High Court, citing that the final authority lies with Parliament and the President. These instances beg the question: Who judges the judges? The judiciary forms one of the three pillars of a democracy and derives its authority from the Constitution. The outdated notion of legislative supremacy has now been replaced: The Supreme Court in Keshav Singh vs Speaker, Legislative Assembly (1965) and People's Union For Civil Liberties vs Union of India (2005) recognised that the Constitution is supreme. The Constitution provides strong safeguards for judicial independence, including security of tenure, fixed salaries charged to the Consolidated Fund, protection from discussion in legislatures, and immunity under laws like the Judges (Protection) Act, 1985. Provisions for the removal of high court and SC judges by Parliament on grounds of 'proven misbehaviour' or 'incapacity' under Articles 124 and 217 create an accountability mechanism. Under Article 124(5), Parliament enacted the Judges (Inquiry) Act, 1968, which provides the procedures to investigate judicial misconduct. Further, on May 7, 1997, the SC's Full Court adopted the 'Restatement of Values of Judicial Life'. It authorises the Chief Justice to constitute an in-house committee to investigate allegations against judges of the higher judiciary. This was recognised in C Ravichandran Iyer vs Justice A M Bhattacharjee (1995). The VP, in one of his latest speeches, spoke of the need to revisit K Veeraswami vs Union of India (1991) in light of the controversy around Justice Varma's case. However, such arguments overlook the constitutional and legal procedures provided for investigating allegations against judges. The Constitution does not permit ad-hoc procedures in matters involving the higher judiciary. Even prior to the Constitution's enactment, the Government of India Act, 1935, provided for a judicial disciplinary committee comprising judges. After Independence, when then-MP Meghnad Saha complained against a judge, Lok Sabha Speaker G V Mavalankar refrained from immediate action. He sought the opinion of the CJI before proceeding. While drafting the Judges Inquiry Bill, 1964 under Article 124(5), eminent legal figures like C K Daphtary and G S Pathak emphasised that complaints against judges should originate from MPs, not the executive, and be submitted to the Speaker or Chairman. If accepted, a three-member judicial committee would investigate the charges. Only if the committee finds the judge guilty may Parliament initiate a debate; otherwise, the motion is dropped. This framework was upheld in Sub-Committee on Judicial Accountability vs Union of India (1991), wherein the Court highlighted practices from countries like the US, Canada, and Australia, where initial investigations are conducted by a judicial body, with legislative involvement occurring later. In Veeraswami, the Court held that judges can be prosecuted under the Prevention of Corruption Act, but only with presidential sanction after consultation with the CJI. This ensures accountability and judicial independence. In Justice Varma's case, any investigation must be initiated through a motion in Parliament, followed by a judicial inquiry under the Judges (Inquiry) Act, 1968. As the Court held in the Sub-Committee case, such inquiries are quasi-criminal in nature and cannot be replaced by political or administrative processes without violating constitutional safeguards. Harry T Edwards, Chief Justice of Appeals for the District of Columbia, noted in a 1989 paper that 'the ideal of judicial independence is not compromised when judges are monitored and are regulated by their own peers'. The Supreme Court in A M Bhattacharjee noted that 'peer review' is in the best interest of judicial independence and in consonance with international practices. The Law Commission of India in its 195th Report recommended the Judicial (Inquiry) Bill 2005, establishing the National Judicial Council, which was to consist of five judges, with the CJI as chairman. The Commission noted that this practice of inquiry finds its roots in various international principles like the Siracusa Principles (1981) and the Latimer guidelines for the Commonwealth (1998). The judiciary, like any other institution, must be held accountable. But that accountability must be enforced within a constitutionally protected framework that ensures independence from political pressures. The rule of law demands not just that justice be done — but that it be done through proper channels, and equally for all. The writer is assistant professor, Jindal Global Law School
Indian Express
07-05-2025
- Politics
- Indian Express
Opinion SC judges declaring assets is welcome. But it is not enough
The public declaration of the assets of 21 Supreme Court judges needs to be lauded as a testament to Chief Justice of India Sanjiv Khanna's commitment to embolden transparency and accountability. This step seems to be a timely attempt to address the increasing dismay over allegations of corruption in the judiciary. The Bench remains one of the most hallowed seats of power in the country. Yet, many times, allegations of corruption mar their image. Former Chief Justice Ranjan Gogoi once remarked, 'Judges don't drop from heaven', and to err is human. Then, how is it possible that no sitting judge has ever been impeached or convicted? The answer lies in the opaque design of the prosecution mechanisms when it comes to judicial officers. The release of the asset details comes in the wake of the discovery of unaccounted cash at a Delhi High Court judge's residence. But it barely covers the critical issues around judicial accountability. Notably, the release of assets is not a novel practice. In 2009, the Supreme Court passed a resolution endorsing the publication of the assets of judges. However, it was voluntary. The portal for uploading these details has remained dormant ever since. While judges enjoy enough immunity, they are not totally shielded from accountability. The Judicial Officers Protection Act, 1850 states that no judicial officer will be subject to a trial before any civil court, for any act done in their judicial capacity, if done in good faith. Similarly, the Judges (Protection) Act, 1985 states that no court can entertain any civil or criminal proceedings against any judge in India for any accusation pertaining to their judicial duty. However, this is not absolute in nature because the Act also states that this does not debar any lawful authority from initiating action against someone, if the charge relates to them as 'individuals' and goes beyond their adjudicatory or administrative role. Further, in the 1991 Supreme Court verdict in the case of K Veeraswamy vs Union of India, the apex court established that no criminal proceedings against a judge of the Supreme Court or a high court will be registered without consulting the Chief Justice of India. The Constitution, under Article(s) 124 and 218, establishes the process of removal of judges on the grounds of 'proven misconduct or incapacity'. This entails a motion passed by both Houses of Parliament with a special majority, which sets a high threshold for impeachment. Whenever an inquiry is initiated against a judge, an internal committee led by the CJI or the relevant high court oversees the matter and decides as appropriate. The outcome, however, is not made public, and the general compass of the punitive measures extends to transfers, resignations or non-assignment of judicial work. The idea behind such immunity is to protect judicial officers from malicious litigation or assault on their independence. But the pitfall is that most of the time, the genuine instances of misbehaviour and corruption remain untouched. Judges all around the world enjoy some degree of immunity. But, they are not insulated from civil or criminal prosecution. The US, Argentina, South Korea and Russia are among the countries that have made it mandatory for judges to declare their assets. Canada and the United Kingdom, like India, have non-mandatory declaration systems: The details are made public only when asked for. While the US, UK and Germany have special legal procedures to try judges, Canada has a Judicial Council which exclusively deals with legal action against them. The push for financial disclosure is also endorsed by international standards like the Bangalore Principle of Judicial Conduct, which not only asks the judges to declare their wealth but also urges them to declare any conflict of interest that might affect their judicial integrity during trials. Also in Opinion | With Operation Sindoor, India demonstrates quiet capability and resolve in the face of terror The financial disclosure, though, is a critical step towards embracing transparency; it is just the tip of the iceberg. These details, otherwise, could have been obtained through Right to Information since the days of the Veeraswamy judgement (reiterated by a 2019 order of the Supreme Court). It said that the judge of any court is a 'public servant'. However, there is still no clarity over whether a judge can be tried under the Lokpal Act. The threshold of actions against a sitting judge also remains high. So, while the recent disclosures are a welcome gesture, judicial accountability needs more.
