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 (PM with CJI- Edited Image Courtesy: PIB)
Did Chief Justice of India (CJI) T. S. Thakur breach the Judiciary’s own voluntary code of conduct (CoC) when he ridiculed Prime Minister Narendra Modi’s Independence Day (ID) speech?
The answers to this and certain other prickly questions on judicial accountability lie in the court of CJI. And national enlightenment on these issues can come only if civil society files public interest litigation (PIL) in the Supreme Court (SC).  A Big If indeed. 
To best of my knowledge, Vocal NGOs have not yet implored CJI to give verdict on applicability of CoC on him? Has PIL industry petitioned SC to admonish the Executive-Legislature combine to not delay further enactment of judicial accountability law?  
Clarity on this count can also emerge if Modi Government advises the President to seek SC’s opinion on these issues. Another Big If!  
A Layman’s reading of CoC named ‘Restatement of Values of Judicial Life’ (RVJL) shows that Justice Thakur prima facie violated two of its 16 principles when he derided PM’s speech. These are: 1) “A Judge shall not enter into public debate or express his views in public on political matters or on matters that are pending or are likely to arise for judicial determination.” 2) “Every Judge must, at all times, be conscious that he is under the public gaze and there should be no act or omission by him which is unbecoming of the high office he occupies and the public esteem in which that office is held.”
Another occasion when CJI deviated from former principle was during the last winter season. Justice Thakur first endorsed #OddEven scheme of Delhi Government outside the Court. He later trashed PIL against the scheme, which rides roughshod over citizens’ right to earn one’s livelihood and physically challenged persons’ right to travel safely. After all, these rights can be interpreted as right to life just as right to fresh air is interpreted to rationalize the scheme.    
Civil Society might well dismiss all this as nitpicking of no consequence in the absence of statutory CoC. 
SC had unanimously adopted RVJL/CoC in its full court meeting held on 7th May 1997. In April 2015, Chief Justices’ Conference discussed agenda item ‘judicial values – a need for re-examination’ and tersely “resolved to reiterate the Declaration of Restatement of Judicial Values, 1997.”
Notwithstanding this reiteration, RVJL enforcement lacks transparency. Instances of it being invoked against deviant judges are rare. RVJL is not even mentioned on SC’s website!
Compare this with Pakistan apex court. The latter’s website not only hosts its CoC but also disclosed the fact that it has been notified through a gazette. 
It is apt to note that Law Commission, in its report on lapsed Judges (Inquiry) Bill, 2005 submitted in January 2006, recommended that CoC to be issued by Judicial Council under the proposed law should be published in the Gazette of India.
LC also recommended that “till such time as the Judicial Council comes to be constituted under the proposed Bill of 2005 and such Judicial Council publishes a Code of Conduct, the Bill must provide that the ‘Restatement of Values of Judicial Life’ adopted by the Supreme Court in its Resolution dated May 7th, 1997 shall be treated as the Code of Conduct for the purposes of the proposed law.”
The Report continued: “It should also contain a provision that the Code of Conduct could be modified from time to time by the Judicial Council by amendments that could be notified in the Official Gazette.”
Administrative Reforms Commission (ARC) echoed LC’s concern for RVJL in its 4th report on Ethics in Governance submitted in January 2007. Under the chapter ‘Ethical Framework for the Judiciary’, ARC observed: “mere prescription of a Code of Conduct is not an end in itself. Along with the Code of Conduct, a mechanism for enforcing the code needs to be evolved. It would be desirable to designate a senior Judge of the Supreme Court as the ‘Judicial Values Commissioner’ (JVC).”
ARC added:  JVC should be empowered to enquire into cases of violation of the Code of Conduct and report the matter to CJI for taking action. JVC should have jurisdiction over the judges of the Supreme Court, and members of other judicial and quasi-judicial bodies. A similar institution should also be constituted at the state level.
Though UPA Cabinet accepted ARC recommendation relating to JVC, it is not known whether the Government communicated it to SC and if so, whether JVC was notified. Google search for Judicial Value Commissioner throws up disappointing result. 
When UPA returned to Power in 2009, it decided to substitute the lapsed Judges (Inquiry) Bill with the Judicial Standards and Accountability Bill (JSAB), 2010. The Bill incorporated RVJL into proposed judicial standards.
A proposed standard that has direct relevance to Justice Thakur’s dig at PM’s ID speech is worth pondering. It reads as: “no Judge shall make unwarranted comments against conduct of any Constitutional or statutory authority or statutory bodies or statutory institutions or any chairperson or member or officer thereof, in general, or at the time of hearing matters pending or likely to arise for judicial determinations.”
This stipulation is of no consequence at present as JSAB lapsed with the dissolution of 15th Lok Sabha in May 2014. NDA Government has disclosed its intent to resurrect the Bill but has not unveiled the revised bill, factoring in suggestions of different stakeholders including Parliament Standing Committee (PSC)
In its report on JSAB submitted during August 2011, PSC recommended: “The Committee feels that Clause 3(2)(f) should be expanded by specifically mentioning that judges should restrain themselves from making unwarranted comments against other Constitutional / statutory bodies/institutions/ persons in open Court while hearing cases.”
The urgency for independent oversight of judicial standards can be driven home well by recalling what legendary Leftist MP, late Bhupesh Gupta, stated during August 1972 while participating in a debate on The Constitution (13th Amendment) Bill, 1972.
Mr Gupta observed: The moment you (judges) sit on the Bench you do not become angels or divine creatures. You see, you are either taken from the Bar or you are recruited directly or promoted from below or some such method is there. Therefore, you have all the virtues and vices associated with others. You carry them with you, you carry your past with you, you carry your qualifications and attendant disqualifications, you carry all of them with you.”
Published by http://nareshminochapolity.blogspot.in/  on 25th August 2016
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