In a major concession to the judiciary, the law ministry has moved a cabinet note to drop the controversial clause debarring judges from making “unwarranted comments” during the hearing process against the conduct of any constitutional authority.
The move is, however, likely to face resistance from other sections of the government as the cabinet had once earlier decided against dropping this clause despite strong protests from the higher judiciary. The Judicial Standards and Accountability Bill, it may be noted, has already cleared the Lok Sabha in March 2012 and is pending in the Rajya Sabha.
This controversial clause, which is part of the section on values in judicial life, states that no judge shall “make unwarranted comments against conduct of any constitutional or statutory authority or statutory bodies or statutory institutions or any chairperson or member or officer thereof, or on matters which are pending or likely to arise for judicial determination”.
Later, although the Lok Sabha had passed it, the government once again considered the issue after protests from the higher judiciary but decided to retain the clause with a minor change to ensure that it does not violate Article 14 of the Constitution, which deals with equality before law.
This meant the clause would just refer to conduct of any “constitutional body and other persons”. Much of the provocation in the government stemmed from continuous criticism and remarks against the Prime Minister and his cabinet during the hearings of alleged scam cases, which would eventually make their way into public discourse, building perceptions well before any order or ruling is out. This also found support among MPs as the standing committee suggested that this provision be explicitly stated.
On the other hand, the higher judiciary argued that such a move effectively meant “gagging” the judiciary and ought to be removed. The law ministry has been in the centre of this heated exchange and has now decided to weigh in in favour of the higher judiciary.
According to law ministry sources, issues relating to judges making unwarranted comments and their fallout must be addressed by building strong conventions through dialogue and not by making laws. The fresh view from the ministry is that the government should not appear to gag the judges. With the cabinet note now in circulation, the issue is all set to be on the frontburner again.