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“Stop tainted judges from working till probe is over”

S. Arun Mohan

New Delhi: “Why do judges greet themselves as ‘brothers,' while others refer to their colleagues as ‘friends,'?” asked K.N. Bhat, former Additional Solicitor-General of India. “That's because you can choose your friends, but not your brothers.” His tongue-in-cheek remark was aimed at the “problematic” system of appointments in the higher judiciary, which according to constitutional experts such as P.P. Rao and Ashok Desai, had sacrificed merit at the altar of seniority.

The senior advocates were voicing their opinion at a discussion on the Standards of Judicial Conduct and Accountability Bill here. Referring to the transfer of Justices Dinakaran and Nirmal Yadav to the Sikkim and Uttarakhand High Courts respectively, one eminent lawyer remarked: “Merely because smaller High Courts lack the clout to resist such transfers, can you expect these judges to retain legitimacy?”

The Bill evoked a wide range of reactions at the seminar, from compliments to criticism. “In my opinion, the Bill is counterproductive — if you want good judges to do their work, you have to leave the bad ones alone too,” said senior advocate Fali Nariman, who was more in favour of revoking the immunity of judges after they retired.

On the other hand, Prashant Bhushan, who heads the Campaign for Judicial Accountability and Reform, claimed that the present system of checking corruption within the judiciary, particularly the impeachment process, was “politicised, impractical and unworkable.”

Mr. Rao and Mr. Desai supported the creation of a National Judicial Commission, as a permanent body that would oversee the appointment, transfer and conduct of judges. Their suggestion that “tainted judges be stopped from doing any further judicial or administrative work till their investigation is complete” found support among the audience.

At the forefront of the debate was the former Chief Justice of India, J.S. Verma, who weighed in on the functioning of the country's judiciary with his many years of experience at its highest level. “Many instances of complaints [against judges] could be false or inaccurate, but that should not prevent people from speaking the truth for fear of contempt of court,” he said.

Justice Verma pointed out that the post-retirement life of judges was rarely subject to scrutiny, and it was important to see that judges “did not undermine the offices they once held.”

All the discussants voiced their concern at the exclusion of the Right to Information Act from its ambit. “Why is the government shy to enforce the Right to Information, if it wants to ensure transparency in judicial functioning,?” Justice Verma said.

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