Since it alters the entire mechanism for investigating allegations of misbehaviour against members of the higher judiciary and simplifies the procedure for their removal, the Judicial Standards and Accountability Bill is a hugely significant piece of legislation. The proposed law, which seeks to replace the outmoded Judges Inquiry Act 1968, under which cumbersome impeachment trials are necessary to dismiss erring judges, lays down enforceable norms for their conduct and enables a wider range of disciplinary action for proven misbehaviour. Chief Justice S.H. Kapadia’s cautionary advice that the independence of the judiciary must not be trampled upon by the process of making judges more accountable deserves serious examination. On the one hand, there is no doubt about the need for an alternative and more effective statutory framework to address complaints against judges, which have increased vastly in recent years. It was the comfort of knowing how difficult the impeachment process was that led to the unabashed show of defiance by Chief Justice P.D. Dinakaran of the Sikkim High Court and Justice Soumitra Sen of the Calcutta High Court, who clung to office until it became certain they would be forced out.
On the other, it is imperative, as Justice Kapadia has suggested, that any new law maintains a sensitive balance between holding judges accountable and preserving the independence of the judiciary. It is no secret that some provisions of the Judicial Standards and Accountability Bill, passed by the Lok Sabha in March this year, have caused consternation not only within the higher judiciary but also among legal scholars and professionals. For instance, the so-called gag clause, which prevented judges from making “unwarranted” oral observations against constitutional authorities, has raised judicial hackles — and quite rightly so. Questions have been raised about the propriety, indeed constitutionality, of having non-judicial members in the Oversight Committee, which deals with complaints about judges. There have been doubts raised about the effectiveness of Scrutiny Panels, which vet and filter out frivolous complaints, peopled by members of the same court as the one complained about. From all appearances, the Centre, which has kick-started a process of consulting various stakeholders, is showing an open mind about bringing an amended version. But it must also show the necessary resolve to see that minor objections don’t hold up the passage of an improved version of the Bill. It would be a pity if this Bill goes the way of its anti-corruption cousin, the Lokpal Bill, which is all but mothballed.
