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What's the way to judge judges?

Sunday, 12 January 2014 - 11:08am IST | Place: New Delhi | Agency: DNA
Lawyers say there is no independent mechanism or method of filing complaints against judicial officers.

After former Supreme Court Justice AK Ganguly’s “misbehaviour” —  a euphemism for sexual harassment of an intern — now comes the case of another former apex court judge, Swatanter Kumar who faces allegation of sexual harassment from another aggrieved intern. Is the Indian judiciary, which remained the unstained pillar of the Indian polity, getting besmirched too? Lawyers say that it is difficult to quantify the number of complaints on various counts against judges, from the lower to the highest court, and that this is so because there is no method of complaining against the judicial officers.

There have been four cases of errant judges in the last two years, and three of them resigned after a public furore — PD Dinkaran, Soumitra Sen and AK Ganguly.

Dinakaran quit as chief justice of the Sikkim high court when an impeachment motion was moved against him on July 29, 2011, Sen resigned on September 1, 2011 as judge of Calcutta High Court when the Rajya Sabha impeached him and it went before the Lok Sabha, and Ganguly stepped down on Thursday (January 9) as chairman of the West Bengal Human Rights Commission
after President Pranab Mukherjee made a reference to the home ministry about action to be taken.
Dinakaran was charged with encroaching on government land, holding more land than permitted under the Tamil Nadu Land Ceiling Act and taking land meant for Dalits.

Sen was accused of not returning the money he was handling as a court-appointed receiver till after he became the high court judge.

It was felt that judges can do no wrong, and in the rare instances where they do there will be the elaborate impeachment process. In recent years, the judiciary too, along with the executive including bureaucracy and the legislative branches, has been seen to be plagued by corruption, sexual harassment and other types of misconduct. And the concern has grown that judges need to be judged too like others accused of wrong-doing. The Jan Lokpal advocates wanted to bring the judges too under the ambit of the ombudsman.

Many lawyers told dna that there is no independent and transparent mechanism to deal with complaints against judges. Senior lawyer KT Tulsi said, “Incidence of complaints against judges is higher, at least the perception is that it is higher.” Human rights lawyer Colin Gonsalves expressed apprehension if the UPA government would use l’affaire Ganguly to encroach on judicial freedom.

Rebecca John, a senior advocate in the Supreme Court, argues that there is no recognised procedure to deal with complaints against judges. In the cases of judges in lower courts, the investigating agency will have to get the permission of the chief justice of a high court before a case is registered because the administrative control of the lower judiciary lies with the high court. She says that whatever the method of dealing with cases against judges should be codified in a statutory provision.

BJP leader and senior lawyer Ravi Shankar Prasad says that the appointment of high court and Supreme Court judges lacks transparency, and the proposed national judicial commission could have helped if only law minister Kapil Sibal did not try to go overboard. 

There are other lawyers who do not want to talk to the media, especially on cases of sexual harassment by judges, because they say there is as yet no intelligent debate on the issue but just sensationalism.

It is in response to this growing perception that the judiciary is both vulnerable and fallible, that government has come up the Judicial Standards and Accountability Bill, 2010. The parliamentary department-related standing committee has returned the bill with its recommendations in 2011, but government has not brought it before parliament for passing it. The bill allows for any one to complain against a judge, which will be considered by the National Judicial Oversight Committee, a scrutiny panel and an investigative team.

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