The Nation: Judiciary; Judging Judges

The judiciary announces a lofty self-regulatory code to cleanse the system but questions remain on how it will be enforced.

It was a pre-emptive step that took everyone by surprise. Last week, even as the Central Government was busy finalising a bill to make the judiciary more accountable and transparent, the chief justices of various high courts met in the capital and announced a lofty plan to cleanse the system from within. The chief justices unveiled a 16-point "Code of Conduct" for judges that would help usher in transparency and probity in the judiciary. Commenting on the need for such a code, Chief Justice of India (CJI) A.S. Anand said, "The judiciary is an institution which survives on credibility. Unbefitting conduct of any judge, of any level, affects the credibility of the institution as a whole. Eternal vigilance by the judges is, therefore, necessary."

CODE OF CONDUCT

ť Do not contest any election except to an association connected with law.
ť Don't allow relatives who are lawyers to appear in your court or share your residence.
ť Don't hear a case involving a relative or a firm in which you own shares.
ť Don't debate political issues publicly or speak on subjudice matters.
ť Let judgements speak for themselves. Do not give interview to media.
ť Do not accept gifts, hospitality or contributions.
ť Don't speculate in shares or stocks.
ť Do not engage directly or indirectly in trade or business.
ť Don't seek any perks attached to your office unless it's clearly available.

Such introspection was long overdue. In the past two decades, there have been several instances when high-ranking members of the judiciary have proved that when it comes to amassing wealth, they won't let minor things like ethics stand in their way. In 1979, the Central Bureau of Investigation chargesheeted justice K. Veeraswami, then chief justice of the Madras High Court, for "possessing assets disproportionate to his known source of income". Similarly, in 1991, the nation was rocked by the corruption charges levelled against justice V. Ramaswami.

By formulating a self-regulating code of conduct, the chief justices hope to restore the credibility of the judiciary by plugging the possible loopholes. "In a democracy, every holder of public office must be accountable to the people," says Justice Anand. For instance, one clause of the code bars close relatives and family members of judges to appear in their court while another disallows judges from accepting gifts or hospitality from anyone except family members or close relatives and even stops them from mixing with people.

Though it is not mentioned in the 16-point code, the chief justices also want that judges declare all their assets -- including real estate and investments -- within a reasonable time of joining the post. Hailing it as a "very healthy sign", former Supreme Court Bar Association chairman R.K. Jain says, "I hope the new path shown by the judiciary will be followed by the executive and legislatures."

But critics are scoffing at this exercise in self-regulation. "What's new about it? Every judge takes the same oath when he is appointed," counters Ranjan Dwivedi, Supreme Court lawyer and secretary-general of the justice V.M. Tarkunde-led Human Solidarity Movement.

Many view the formulation of the code only as a bid to pre-empt the setting up of the proposed National Judicial Commission (NJC) that will have sweeping powers to appoint, transfer and remove erring judges, including the chief justice of the Supreme Court. What alarmed the judiciary was Union Law Minister Ram Jethmalani's recent reiteration that the Union Government was committed to setting up the NJC and may move a bill to that effect in the winter session itself.

This was followed by some harsh words from Prime Minister Atal Bihari Vajpayee. At the function to mark the Golden Jubilee of the Supreme Court on November 26, Vajpayee asked the judges to judge themselves. Visibly anguished by the state of affairs in the judiciary, he noted gravely, "There is an all pervasive perception that the law has become a shield of the unscrupulous." He also expressed his shock over the "alarming" situation in the criminal justice system where over two crore cases were pending in various courts. The prime minister made it clear that the Government would set up the NJC to revamp the entire system and even draw up a code of ethics for the judges.

Jethmalani's resolve and Vajpayee's reiteration caused panic in the judiciary. Justice Anand held the Government -- both at the Centre as well as states -- responsible for the huge backlog. He said the delay in the appointment of judges and judicial officers -- 154 vacancies in various high courts and roughly 1,000 in lower courts -- had led to the piling up of cases. According to him, recommendations for setting up 5,000 new courts were pending with various state governments.

Besides such deft passing of the buck, the CJI demanded "financial autonomy" for the judiciary for better administration of justice. His reasoning: expenditure on the judiciary in the country was a minuscule 0.2 per cent of the GNP as compared to 4.3 per cent in UK. "Till the judiciary is given financial autonomy, which is absolutely necessary so that it does not have to negotiate with the biggest litigant (the state) every time it need funds, the executive should loosen its purse strings and provide courts with proper infrastructure," he countered.

A body to oversee the working of the judiciary is not a recent idea. When the Veeraswami and Ramaswami cases were being debated in the early '90s, a group of eminent lawyers and social activists led by Jethmalani had launched a campaign for setting up such a body. The Committee on Judicial Accountability (CJA) had even drafted a bill for the constitution of the NJC. It was moved as a private member's bill by Jethmalani but eventually lapsed in Parliament.

Former solicitor-general A.D. Giri, who was also a member of the CJA, says such codes should have been enforced long ago. To be sure, a code of ethics for judges too isn't new. It was first mooted in 1996 at a conference of chief justices. A committee headed by Justice Anand formulated the code in 1997. Called "Reinstatement of Values of Judicial Life", the code was adopted by all the high courts, except Orissa and Gujarat. At the recent conference of chief justices, Justice Anand said that since such a code had already been adopted, a procedure must be devised for "taking suitable remedial measures" against the erring judges.

Therein lies the catch. Nobody has the faintest idea how the code of conduct is to be enforced. And nobody knows who would do it. Whether a peers' body will monitor its implementation or if ad hoc arrangements will be made when the need arises. Neither the CJI's speech nor the resolution containing the codes indicated anything to that effect. Says Lata Krishnamurti, another member of the CJA, "it's not clear what happens if a member of the judiciary is found foul by this code of ethics. Also it must be made clear if a lawyer can petition against the conduct of a judge."

Also, it is felt that the scope of the code is limited. When justice Ranganath Mishra became CJI in 1991 he recalled justice Ramaswami to the bench, causing a sharp schism in the judiciary. After retirement, justice Mishra became chairman of the National Human Rights Commission and later a Congress member of the Rajya Sabha -- the only former CJI to do so. Supreme Court lawyer Feroze Ahmad wonders why the code is silent on judges taking up political and other posts after retirement.

Unless these questions are answered, the code of conduct for judges announced with much fanfare might not be reason enough for the Government to put the proposal to set up the NJC in cold storage.

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