OPINION

Holding judges accountable

"Perhaps, it is not an exaggeration to state that no other earlier reference to the Law Commission in the last fifty years has been as important as [this]... " So states the 195th report of the Law Commission, which was asked to study and give its suggestions on a rough cut of the Judges (Inquiry) Bill. The bill, now approved by Cabinet, makes significant changes in the procedure for holding to account Supreme Court and High Court judges, among whom we have it on the authority of a former Chief Justice of India, 20 per cent are not honest. Under the existing Judges (Inquiry) Act, 1968, any investigation of misbehaviour and incapacity of a member of the higher judiciary can begin only if a motion to this effect is passed in either House of Parliament. Moreover, the only action possible against Supreme Court and High Court judges is impeachment a time-consuming, cumbersome procedure that requires the support of a two-third majority in both Houses. One result of this is that the only judge found responsible for misbehaviour under the Act, Justice Ramaswami, could not be removed from the Supreme Court as the motion was not carried in the Lok Sabha. In contrast with the earlier "reference" procedure, under the new bill anyone will be in position to lodge a complaint against a member of the higher judiciary.

Another significant feature is that it allows for minor charges to be brought against judges, those for which punishments could include issuing advisories, stopping assignments, delivering censures or being asked to resign. The Law Commission had strongly canvassed for the inclusion of "minor measures" on the lines of the provisions in the United Kingdom, the United States, Germany and Canada, which would be a great advance over the existing impeachment-or-nothing system. The Supreme Court had also underlined the need for "minor measures" in the event of proved judicial misbehaviour or incapacity warranting less than removal (C. Ravichandran vs Justice A.M. Bhattacharjee, 1995). In place of the three-member committee under the 1968 Act, the bill envisages a five-member National Judicial Council comprising the Chief Justice of India, the two senior-most Supreme Court judges and two High Court judges. A different suggestion, canvassed in some quarters, for a judicial council with a broader composition, that is, one that includes members from outside the judiciary as well, would have impaired judicial independence and run afoul of the doctrine of separation of powers. The mechanism proposed in the bill is in line with the Supreme Court's view that "in-house peer review" is the proper mechanism to impose punishments on judges. What is envisaged is a fairly comprehensive structure to discipline errant judges. How well it works will depend on the judges themselves.

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