THE JUDICIAL STANDARDS
AND ACCOUNTABILITY BILL, 2010
-A
CRITIQUE
By Dr
T Padma,
LLM., Ph D (Law)
LLD Scholar (A P Law University)
kethepadma@gmail.com
“If
the Indian Constitution is our heritage bequeathed to us by our founding
fathers, no less are we, the people of India, the trustee and custodians of the
values which pulsate within its provisions! A constitution is not a parchment
of paper, it is a way of life and has to be lived up to. Eternal vigilance is
the price of liberty and in the final analysis, its only keepers are the
people. Imbecility of men, history teaches us, always invites the impudence of
power.”[1]
- Justice H.R. Khanna
Background
The recent years have
witnessed a vigorous debate about the working of our judiciary, including the
higher judiciary. At one level, serious charges of corruption, nepotism and
acquisition of assets disproportionate to known sources of income have been
levelled against some members of the judiciary, raising concerns about the
integrity and impartiality of our judicial system and processes. While these
have undoubtedly damaged the high regard in which the judiciary is usually
held, there is simultaneous appreciation that the judiciary is not only the
last bastion for the citizen against state excess, arbitrary behaviour and
apathy but also the ultimate guarantor and upholder of the Constitution and
democracy.
During Indira Gandhi’s rule, there was political
stability in the country and the Congress enjoyed a majority in Parliament.
Days after the historic Kesavananda Bharati case verdict [2] in April 1973, in which Supreme Court propounded the
theory of basic structure, four senior SC judges were superseded and Justice AN
Ray was appointed the CJI. As a result,
four senior-most judges resigned. Later, Justice HR Khanna too was superseded.
During the Emergency, several judges became victims of punitive transfers as
they were transferred without the consent of the CJI.
Since the 1989 general
elections, no individual political party has got a majority in the Lok Sabha.
With political instability and coalitions being the norm of the day, the fear of
the power of the political establishment in the mind of the judiciary seems to
have vanished.
Under Article 124(2) and Article
217(1) of the Constitution, a judge of the Supreme Court (SC) and that of a
high court respectively have to be appointed by the President after ‘consultation’ with the Chief Justice of
India (CJI). However, via a judgement in
1993, the SC effectively took over the executive’s power to appoint judges to
the higher judiciary and started what has come to be known as the ‘Collegium System [3] ’.
A nine-judge Constitution Bench in 1998 further ruled that primacy has to be
given to the collegium’s view over
that of the President.
The Collegium System, has tilted the balance of
power between the judiciary and the executive envisaged under the Constitution
in favour of the former in appointment of judges. This makes India the only
country in the world where judges appoint judges through a procedure wrapped in
complete secrecy.
It is not a coincidence
that during the phase of political instability, the country witnessed ‘judicial
activism’ and the judiciary steadily asserted its powers in various spheres,
including judicial appointments. Many recent judgements of both the High Courts
and the Supreme Court have enhanced the regard of the judiciary, paving the way
for citizen-friendly legislation and protection of human rights. It is
increasingly realized that the fearlessness of these judicial pronouncements is
predicated on the constitutionally mandated judicial independence from the
executive, which should in no instance be undermined.
Judicial Standards -
Need for a Statutory Mechanism
The need for a statutory
mechanism to address complaints of the public in this regard has been felt to
bring greater transparency in the judiciary. The Judges (Inquiry) Act, 1968 which
‘The
Judicial Standards and Accountability Bill, 2010’
seeks
to replace lay down a procedure for removal, for proved misbehaviour or
incapacity, of Judges of the High Courts and the Supreme Court by way of
address of the Houses of Parliament to the President. The Act does not require
proceedings of investigation to be conducted behind closed doors. There is,
however, no legal provision at present for dealing with complaints filed by
the public against Judges of the High
Courts and the Supreme Court.
Restatement
of Values of Judicial Life
However, the Full Court
meeting of Supreme Court of India on 7 May, 1997 had adopted "the
Restatement of Values of Judicial Life". The above Restatement lays down
certain judicial standards which are to be followed by the Judges of the
Supreme Court and the High Courts. However, this Restatement of Values of
Judicial Life does not have any legal authority and cannot be enforced. Therefore,
it is felt that the judicial standards also be made a part of the statute to
give it the requisite legal sanction. This measure is also likely to increase
public confidence in the judiciary considerably as the Judges would be required
to follow the prescribed judicial standards.
Declaration
of Assets & Liabilities of Judges
There is also no legal
provision at present that requires Judges of the Supreme Court and High Courts
to declare their assets and liabilities. The Resolution adopted at the Full
Court meeting of the Supreme Court of India on 7 May, 1997 requires every Judge
to declare his assets within a reasonable time of assuming office and
thereafter whenever acquisition of substantial nature is made. The Second
Administrative Reforms commission, in its fourth Report on Ethics in
Governance, endorsed the above resolution after noting that independence of
Judiciary by the citizens and, therefore, the conduct of a judge should be
above reproach. In the Writ Petition (C) No. 288/09 filed
on behalf of the Hon'ble Supreme Court in the Delhi High Court challenging the
order date 6th January, 2009 passed by the Central Information
Commission under the Right to Information Act, 2005, it has been asserted on
behalf of the Supreme Court that the Judiciary has no objection to the
disclosure of assets of Judges provided this is done in a formal manner by an
Act of Parliament with adequate safeguards [4].
In this backdrop, it is
considered necessary to enact a law in this regard to meet with the larger
public interest as well as ensuring and maintaining the independence of the
judiciary.
The Judicial Standards
and Accountability Bill, 2010
The
Judicial Standards and Accountability Bill, 2010 as introduced in the Parliament
seeks to (a) lay down judicial
standards, (b) provide for the accountability of judges, and (c) establish
mechanisms for investigating individual complaints for misbehaviour or
incapacity of a judge of the Supreme Court or High Courts. It also provides to regulate
the procedure for such investigation; and for the presentation of an address by
parliament to the president in relation to proceeding for removal of a judge
and for matters connected with such matters.
The Bill was introduced
in the Lok Sabha 1st December, 2010 and was then sent to the
parliamentary standing committee on personnel, law and justice, which made a
crucial recommendation that seeks to "restrain" judges from making
"unwarranted comments" against other constitutional bodies or
persons. Thereafter, the Bill was passed by the Lok Sabha on 29th
March, 2012 and will be taken up for debate in the Upper House.
Significant points of
the Bill
(1) The Judicial Standards and Accountability Bill, 2010 requires judges to declare their assets, lays down judicial standards, and establishes processes for removal of judges of the Supreme Court and High Courts.
(2) Judges will be required to declare their assets and liabilities, and also that of their spouse and children.
(3) The Bill establishes the National Judicial Oversight Committee, the Complaints Scrutiny Panel and an investigation committee. Any person can make a complaint against a judge to the Oversight Committee on grounds of ‘misbehaviour’.
(4) A motion for removal of a judge on grounds of misbehaviour can also be moved in Parliament. Such a motion will be referred for further inquiry to the Oversight Committee.(5) Complaints and inquiries against judges will be confidential and frivolous complaints will be penalised.
(6) The Oversight Committee may issue advisories or warnings to judges, and also recommend their removal to the President.
Critical Issues
(a) The main issue is
whether the balance between independence and accountability is maintained by
the proposed mechanism in the Bill. The
Oversight Committee has non-judicial members which might impinge on the
independence of the judiciary.
(b) The Scrutiny Panel has judges from the same High Court. This is different from the in-house procedure of the Supreme Court.
(c) The Bill does not mention whether a judge has the right to appeal to the Supreme Court against an order of removal issued by the President after Parliament finds him guilty of ‘misbehaviour’.
(d) The Oversight Committee has non-judicial members. The procedure of the Committee is not an in-house procedure of the judiciary. It is not clear whether the power of the Oversight Committee to impose minor measures is constitutionally valid.
(e) The Bill penalises anyone who breaches the confidentiality of complaints. It is questionable whether a penalty is needed for a frivolous complaint that remains confidential.
(b) The Scrutiny Panel has judges from the same High Court. This is different from the in-house procedure of the Supreme Court.
(c) The Bill does not mention whether a judge has the right to appeal to the Supreme Court against an order of removal issued by the President after Parliament finds him guilty of ‘misbehaviour’.
(d) The Oversight Committee has non-judicial members. The procedure of the Committee is not an in-house procedure of the judiciary. It is not clear whether the power of the Oversight Committee to impose minor measures is constitutionally valid.
(e) The Bill penalises anyone who breaches the confidentiality of complaints. It is questionable whether a penalty is needed for a frivolous complaint that remains confidential.
Analysis
of
the Bill
Without changing the
present reference procedure for the removal of corrupt judges, the Bill seeks
to empower the common man to lodge complaints against corrupt judges and
proposes to set up a mechanism to deal with such complaints. It also seeks to make unwarranted comments by
judges against other constitutional functionaries a judicial misconduct.
The Bill which was passed by the Lok Sabha on 29th
March, 2012 in just 15 minutes has missed out some
important points.
(1) Restatement of Values of Judicial Life
The
Bill lays down standards of conduct for the members of the higher judiciary and
requires judges to practise universally accepted values of judicial life. These
include a prohibition on: (a) close association with individual members of the
Bar who practise in the same court as the judge, (b) allowing family members
who are members of the Bar to use the judge’s residence for professional work,
(c) hearing or deciding matters in which a member of the judge’s family or
relative or friend is concerned, (d) entering into public debate on political
matters or matters which the judge is likely to decide, and (e) engaging in
trade or business and speculation in securities.
However
Article 124(5) of the Constitution empowers Parliament to make laws only to
regulate the procedure for:
a)
The presentation of an
address to the President seeking the removal of a judge; and
b)
The investigation and
proof of misbehaviour or incapacity of a judge.
The Constitution is
silent on the issue as to who is competent to define standards of behaviour for
members of the higher judiciary. Given this grey area it is important for any
legislative proposal for dealing with complaints of misbehaviour to be in
accordance with the principle of the independence of the judiciary.
Further, the Bill does
not provide for any code of behaviour that applies to a judge after retirement.
Therefore, it is also necessary to lay down a code of conduct for judges
post-retirement in order to prevent situations where a Government may lure them
with plum postings after they have demitted office. A cooling off period of one
year may be stipulated in the law.
2) Declaration of Assets & Liabilities of
Judges
The
Bill seeks to make it mandatory for judges to declare their assets and
liabilities as well as those of his/her spouse and dependent children.
Such declaration has to
take place within 30 days of the judge taking his oath to enter his office.
Every judge will also have to file an annual report of his assets and
liabilities. The assets and liabilities of the judge will be displayed on the
website of the court to which he belongs.
3) Investigation
mechanism
The
Bill establishes two authorities to investigate complaints against judges. The two
authorities are:
a) National
Judicial Oversight Committee; and
b) Scrutiny
Panel.
Initial
complaints will be made to the Oversight Committee, and they will be referred
to the Scrutiny Panel.
A
Scrutiny Panel will be constituted in the Supreme Court and every High Court.
It shall consist of a former Chief Justice and two sitting judges of that
court. If the Scrutiny Panel feels there are sufficient grounds for proceeding
against the judge, it shall report on its findings to the Oversight Committee.
If it finds that the complaint is frivolous, or that there not sufficient
grounds for inquiring against into the complaint, it shall submit a report to the
Oversight Committee giving its findings for not proceeding with the complaint.
As contemplated in the
195th Report of the Law Commission on the Judges’ (Inquiry) Bill 2005, an
inquiry into any complaint made under this Act must be taken to its logical conclusion.
If the findings establish that the complaint was not proved or disproved there
will be no consequences for the judge concerned. However retirement or
demitting office should not be a ground for stopping the inquiry. The truth
must be discovered and if the Judge is found guilty he or she must face some
consequence for the misbehaviour. This can include stoppage or reduction of
pension and ensuring that the person is not appointed to any public office in
future. The recommendation of the Judicial Oversight Committee should be
binding on the Central Government.
4)
Frivolous
or vexatious complaints
The
Oversight Committee will consist a retired Chief Justice of India as the
Chairperson, a judge of the Supreme Court nominated by the sitting Chief Justice
of India, a Chief Justice of the High Court, the Attorney General for India,
and an eminent person appointed by the President.
If
the Scrutiny Panel recommends investigation into a complaint against a judge,
the Oversight Committee will constitute an investigation committee to
investigate into the complaint. The inquiry committee will consist of not more
than three members. It will have some powers of a civil court and also the
power to seize documents and keep them in its custody.
The
investigation committee will frame definite charges against the judge and shall
communicate the same to the judge. The judge shall be given an opportunity to
present his case, but if he/ she chooses not be heard, the proceedings may be
heard without him present.
If the charges against
a judge are proved, the Oversight Committee may recommend that judicial work
shall not be assigned to the judge. It may also issue advisories and warnings
if it feels that the charges proved do not warrant the removal of the judge. If
the Committee feels that the charges proved merit the removal of the judge, it
shall (a) request the judge to resign voluntarily, and if he fails to do so,
(b) advise the president to proceed with the removal of the judge. In such a
case, the President shall refer the matter to Parliament.
The punishment should
be imposed only when the allegations against a judge are disproved and it can
be shown that the allegations were made with malicious intent. The terms
“vexatious” and “frivolous” are impossible to objectively define.
5)
Removal
of a Judge
A
motion for removal of a judge can also be introduced in Parliament by members
of Parliament. In such a case, the Speaker or the Chairman can either admit the
notice, or refuse to admit it. If the notice is admitted, the matter shall be
referred to the Oversight Committee for inquiry.
So
what is more important is whether the removal of corrupt judges? Or the
appointment of honest ones? The basic problem relates to the appointment of
judges and not their removal. If only honest and deserving people make it to
the higher judiciary, the occasion for their removal would never arise.
Unfortunately, there is no transparency in the present appointment system.
6)
Exemption
under Right to Information Act, 2005
The
Bill exempts documents and records of proceedings related to a complaint from
the purview of the Right to Information Act, 2005.
The reports of the investigation
committee and the order of the Oversight Committee shall be made public.
Conclusion
If a fair system for judges’ selection has to be
put in place and the balance of power between the judiciary and the executive
envisaged under the Constitution in matters of appointments of judges is to be
restored, it would require a constitutional amendment. We need a political
consensus on setting up a broad-based National Judicial Commission comprising of
a woman of outstanding stature in public or judicial affairs, a representative
of the Scheduled Castes or the Scheduled Tribes, and care should be taken to
ensure that there is broad representation from the north, south, east and west
of the country. Not an oligarchic club with a class bias, but a democratic
instrument with a high vision, so that, We, the People of India must not be
alienated or are out of bounds vis-à-vis the Judicial Commission’s functional
ambit. The Commission so constituted, with powers to appoint, transfer and
remove SC and HC judges on the lines of similar bodies in other democracies and
without giving the veto power to either the executive or the judiciary, has
thus become the need of the hour.
Since the Lok Sabha has already passed the Bill,
it will now be debated in the Rajya Sabha, where the ruling alliance does not
have a majority. Let’s hope that the Upper House will discuss it threadbare and
suggest the much needed measures for course correction and to increase public confidence in the
Indian judiciary.
[ Published in Supreme Court Journal (weekly law journal), Part -13, 2012 during March, (2012(3) SCJ]
Source:
1) Forty Seventh Report on the Judicial Standards and Accountability Bill, 2010. Presented to the Rajya Sabha on 30th August, 2011 & Laid on the Table of the Lok Sabha on 30th August, 2011.
2) 195th Report
of the Law Commission of India on the Judges (Inquiry) Bill, 2005 submitted
during 2006.
3) 214th
Report of the Law Commission of India on ‘Proposal for Reconsideration of
Judges cases I, II and III’ submitted during 2008.
[This material is put online to further the educational goals of ‘Study in Law’. This material may be used freely for educational and academic purposes. It may not be used in any way for profit.]
[1]Extract from ‘Making of India’s Constitution’ by Justice H.R.Khanna
(1981)
[2] Kesavananda Bharati v. The State of Kerala and Others;AIR 1973 SC 1461
[3]It
is a system under which appointments and transfers of judges are decided by a
forum of the Chief Justice of India and the four senior-most judges of the
Supreme Court. It has no place in the Indian Constitution.
Article 124 deals with the appointment of Supreme Court judges. It
says the appointment should be made by the President after consultation with
such judges of the High Courts and the Supreme Court as the President may deem
necessary. The CJI is to be consulted in all appointments, except his or her
own. Article 217 deals with the appointment of High Court judges. It says a
judge should be appointed by the President after consultation with the CJI and
the Governor of the state. The Chief Justice of the High Court concerned too
should be consulted.
The collegium system has its genesis in a
series of three judgments that is now clubbed together as the “Three Judges
Cases”. The S P Gupta case [AIR 1982 SC 149] (December 30, 1981) is called the
“First Judges Case”. It declared that the “primacy” of the CJI’s recommendation
to the President can be refused for “cogent reasons”. This brought a paradigm
shift in favour of the executive having primacy over the judiciary in judicial
appointments for the next 12 years.
On October 6, 1993, came a nine-judge bench
decision in the Supreme Court Advocates-on Record Association vs Union of India
case [1993 (4) SCC 441] — the “Second Judges Case”. This was what ushered in
the Collegium System. The majority verdict written by Justice J S Verma said
“justiciability” and “primacy” required that the CJI be given the “primal” role
in such appointments. It overturned the S P Gupta judgment, saying “the role of
the CJI is primal in nature because this being a topic within the judicial
family, the executive cannot have an equal say in the matter.
[4] The Statement of
Objects and Reasons, appended to the Judicial Standards and Accountability
Bill, 2010
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