L A W  &  J U S T I C E

Judiciary is not Above the Public
Joginder Singh Toor

"THERE cannot be more glaring case of double standards" writes Prashant Bhushan a senior lawyer, “ than when it comes to judges in matters of information relating to them.” The only thing the public has not been able to know and cannot in future too is about the prudence and property of the persons holding judicial positions. No self-respecting judge will like an enquiry against him to be conducted by a person other than a judge, declares the Chief Justice of India.  During process of consultation, relating to the formation of a National Judicial Council, the entry of any other person, even the Speaker of Lok Sabha, the Prime Minister, the Leader of the Opposition or a jurist of what ever eminence, as earlier conceived in the formation of National Judicial Commission is barred.

The proposed Council shall consist of the Chief Justice of India as chairperson, two senior most judges of the Supreme Court and two chief justices the high courts, all to be nominated by the Chief Justice of India with rotational variation in the event the complaint against any member of the Council.

The scope of enquiry is curtailed, so as not to investigate any complaint regarding act of misbehavior committed before coming into force the N.J.C., Act, neither covering any such act regarding which complaint is not filed within two years nor regarding a judge who has demitted office before the complaint is made.

Above all, specifically denying to the public any information about the contents of the complaint, the proceedings taken, the evidence produced. Every such enquiry is to be conducted in camera by the chairperson and the members of the Council sitting jointly.

The right to information of which the Supreme Court has been the staunchest votary, and which right has of late, acquired the status of a fundamental right has been specifically denied to the people in matters relating to judges by inserting Section 27.

It keeps aside any law even if there, which includes Right to Information Act, "The complainant and every person who participates in the preliminary investigation or inquiry as a witness or as a lawyer or in any other capacity, whether or not he seeks confidentiality about his name, must undertake to the Council that he shall not reveal his own name, the name of the Judge complained against, the contents of the complaint or any of the documents or proceedings to anybody else including the media without the prior written approval of the Council.

If any complainant or other person who participates in the preliminary investigation or inquiry as a witness or as a lawyer or in any other capacity contravenes to provisions of sub-section (1), he shall be punishable with simple imprisonment for a term which may extend to one month, or with fine which may extend to five hundred rupees or with both and the provisions of section 25, so far as may be, shall apply."

Justice Mathew in his judgment in Keshwa Nand Bharti Vs State of Kerala observed, "fundamental rights have no fixed contents and most of them are empty vessels into which each generation must pour its content in the light of its experience". And in the case of People’s Union of Civil Liberties added contents to the empty vessel by saying, "from time to time this court has filled skeleton with soul and blood and made it vibrant. For last more than 50 years this court has interpreted Art. 14, 19 and 21 and given meaning and colour so that nation can have a true republic".  Justice Venkataraman concurred, "voters right to know about the antecedents of the candidate falls within the realm of freedom of speech and expression guaranteed by Article 19(1)(a) through a creative approach dictated by the need".

In case of Indian Express News Papers (Bombay)(P) Ltd. the Supreme Court recognised four broad social purposes of the freedom of expression which now embodies freedom of information (i) helps individual to attain fulfillment, (ii) assists discovery of truth; (iii) strengthens the capacity of an individual in participation in decision making; (iv) provides a mechanism to make possible a reasonable balance stability and social change.

And, then why this aspect of the development of Fundamental Rights evades developing on information regarding the pillars of justice. The question, which haunts the reasonable man time and again, is the want of access to information as to the pallbearers of their justice delivery system, even after the Supreme Court poured spirit and blood in the empty vessel of fundamental rights and made the skeleton vibrant.

The glaring examples that stare the citizen in the face are denial of right to know the contents of complaint, the name of the judge, the evidence in support and related proceedings during an enquiry by the proposed National Judicial Council in the Judges Enquiry Bill by inserting a specific provision.  The denial to the citizens the right to know the assets and properties of a Judge under cloud, the denial to register a criminal case against a Judge except with the previous permission of the Chief Justice of the Supreme Court of India however, strong the case may be. Then reluctance of so many high courts to appoint principal information officers to provide information to the public under the provisions of the Right to Information Act. There is a clear attempt to dilute the Act by making rules as in the case of Delhi High Court providing payment of Rs.500 fee as compared to Rs.10 fixed by the Central Government.  Reducing the amount of penalty to be imposed on the person failing to provide information from Rs.25000/- to Rs.500/- only and limiting the scope of information to the judicial side.  And finally recommendation of the Supreme Court that decision of the Registrar General refusing to provide information on grounds he finds proper, to be final and not subject to any appeal or other supervisory jurisdiction.

The subjects, the citizens, want not only to know about the third pillar of the State, the judiciary but also about the consistent attempt to deprive the people the right to information, constructively or derivability developed, to the stature of a living force from a mere skeleton or an empty vessel.

[jogindersingh_toor@yahoo.com]

BACK