In the wake of the Monsoon revolution, the winds of change have been blowing across the country. Institutions that once seemed resistant to change are now adapting to new realities. Reforms that seemed impossible just a few months ago now appear not only possible but likely. In the post August legal order, the judiciary has, quite understandably, come under intense scrutiny. The Appellate Division has been restructured under a new Chief Justice, and the High Court Division is on the verge of major reforms and reshuffles. Changes in the subordinate judiciary are also in the offing.
For several decades, the subordinate judiciary had eluded reforms. The landmark Supreme Court judgment in the Masdar Hossain Case a quarter of a century ago had charted the way forward for separating the judiciary from the executive. Yet, concerted executive machinations had rendered the judgment of the Supreme Court largely ineffective. Judicial independence remains more of an aspiration than a reality.
Reforms of the lower judiciary can be effective and sustainable only when they are undertaken under the aegis of the Supreme Court. Fortunately for the subordinate judiciary, the Appellate Division has already undertaken the painstaking task of formulating the Rules required to implement the judgment in the Masdar Hossain Case. In an Order passed on 28 August 2016 in a Contempt Petition (which was filed to enforce its judgment in the Masdar Hossain Case), a 9-member bench of the Appellate Division refused to accept the Disciplinary Rules for Judicial Officers drafted by the government. The Court noted with exasperation that the draft Disciplinary Rules were not in conformity with the Masdar Hossain directives. With a resigned acceptance that the government will torpedo every attempt to separate the subordinate judiciary from the executive, the apex Court, in an extraordinary move, amended the disciplinary rules to ensure they complied with the Masdar Hossain directives. The Court also drafted Conduct Rules for Judicial Officers and amended the Judicial Service Rules of 2007 to secure the judiciary’s separation from the executive. This rare exercise of judicial legislation was aimed at preventing what a former Chief Justice had memorably called a “constitutional derailment.” On 7 September 2016, an Assistant Registrar of the Supreme Court forwarded a copy of the Order together with the amended Rules to the relevant Ministries for necessary action. There was hope that finally the Masdar Hossain judgment would be implemented.
Less than 16 months later, the optimism faded.
On January 3, 2018, the Government introduced the Disciplinary Rules 2017, which significantly deviated from the Supreme Court’s original rules. The Supreme Court’s Disciplinary Rules had placed the Court at the centre of the disciplinary process for Judicial Officers. However, the government’s draft rules removed this central role.
Under Rule 3(4) of the Supreme Court’s Draft Rules, the Court could decide if an allegation against a Judicial Officer warranted action and, if so, appoint inquiry officers. Rules 3(6) and 3(7) allowed the Court to review the inquiry report and recommend further actions, such as departmental proceedings, additional inquiries, or other measures like caution or transfer.
In contrast, the Disciplinary Rules 2017 prepared by the government marked a significant departure. According to Rule 3(3) of these rules, the Supreme Court would only be notified of allegations against a Judicial Officer if the ‘appropriate authority’ (i.e., the President or relevant Ministry) was satisfied with their validity. Only then would the Supreme Court’s recommendations be sought. Rule 3(4) stated that the ‘appropriate authority’ would appoint inquiry officers based on the Supreme Court’s recommendation only if it deemed the allegations worthy of inquiry. Essentially, the Supreme Court’s role was reduced to that of an accessory to the government in disciplining Judicial Officers.
On 3 January 2018, the Attorney General placed the Disciplinary Rules of 2017 before the Supreme Court for its approval. Being a slur on judicial independence as they were, one would have expected the apex Court to reject them outright. Yet the 5-member bench of the Appellate Division made a complete U-turn. In a brief two-page Order without detailed reasoning, the apex Court accepted the Disciplinary Rules claiming they ensured the ‘primacy’ of the Supreme Court’s views over the executive. Interestingly, all five Judges on the bench had been party to the Order of 28 August 2016 which had formulated the Draft Disciplinary Rules for Judicial Officers. It is unclear why the bench accepted the Disciplinary Rules, but the forced resignation of Chief Justice SK Sinha only a few months ago, following a conflict with the government, may have influenced their decision.
As we now approach reforms of the subordinate judiciary, it is important to revisit the proposed Conduct and Disciplinary Rules formulated by the Supreme Court. These Rules were designed to ensure the independence of the subordinate judiciary and may very well serve as a foundation for any fresh reform initiatives. It is worth bearing in mind that no initiative for reform of the subordinate judiciary would be successful without an active involvement of the Supreme Court. The central role of the apex Court, as contemplated in the Disciplinary Rules framed by it, would be crucial in implementing lasting reforms in the subordinate judiciary and in ensuring that the judiciary remains separate and independent from the executive organs of the state.