Ensuring judicial accountability

Sansad Bhavan, parliament building of India.

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Provision needed for judges’ premature retirement


Law Minister Veerappa Moily appears to be keen on judicial reforms. He has taken several initiatives, the latest being the Judicial Standards and Accountability Bill, 2010, introduced in the Lok Sabha on December 1 amidst din and noise. The Bill seeks to provide for a mechanism to deal with complaints of the public against judges, give legal shape to the Reinstatement of Values of Judicial Life adopted by the Supreme Court in 1997, make it obligatory for judges to declare their assets and liabilities after assuming office and whenever new assets are acquired, and to replace the Judges (Inquiry) Act, 1968, without affecting the right of the members of Parliament to initiate action for the removal of judges on the ground of misbehaviour or incapacity.

The Bill contemplates constitution of a “complaints scrutiny panel” in the Supreme Court and in every High Court to scrutinise the complaints and refer such of them as need to be enquired into by the Oversight Committee consisting of a retired Chief Justice of India (Chairman), a judge of the Supreme Court, the Chief Justice of a High Court, the Attorney-General and an eminent person nominated by the President (Members). The Oversight Committee would constitute an investigation committee to go into the complaints and thereafter hold an enquiry against the judge concerned, giving him a reasonable opportunity to defend himself. If the charges proved do not warrant removal of the judge, the Oversight Committee may issue advisories or warnings. If it notices commission of any offence by a judge, prima facie, it may recommend his or her prosecution. If the charges proved are serious, warranting removal of the judge, it would make a request to the judge to voluntarily resign, failing which it would advise the President to make a reference to Parliament for the removal of the judge under Article. 124(4).

Removal of a judge can take place only after an address by each House of Parliament supported by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of the House present and voting.

The Bill is a step in the right direction. It has some welcome features such as providing for a transparent mechanism for scrutiny and an inquiry into complaints against judges, requiring declaration of assets and liabilities by them and for the exhibition of information on the website of the court concerned, enumerating judicial standards which every judge shall practice, including not permitting any member of his family to appear before him or to use his residence or other facilities provided to him for professional work, etc.

The definition of “misbehaviour” to include not only corruption or lack of integrity but also failure to furnish the declaration of assets and liabilities is significant. The question is: are these provisions enough to ensure accountability. The real problem is not about investigation of or an inquiry into charges of judicial misbehaviour by an impartial committee, but the uncertainty of impeachment by Parliament as it happened in the case of Justice V. Ramaswami, Judge, Supreme Court. His misbehaviour was established in an open and transparent inquiry conducted by a committee with a sitting judge of the Supreme Court as Chairman and Chief Justice of a High Court and a retired judge of the Supreme Court as members. It was expected that Parliament would show due deference to the findings given by such a high-powered committee and give effect to them.

Somnath Chatterjee’s autobiography, “Keeping the Faith”, narrates how the then ruling party aborted the motion of impeachment. Even the judges of the Supreme Court were not unanimous on his continuing to discharge judicial duties while the inquiry was going on. Chief Justice Sabyasachi Mukherjee pronounced an order in open court stating that he would not assign work to Justice Ramaswami till he was cleared of the charges in the inquiry. Justice Ranganath Misra, his successor, constituted a committee of three judges to consider whether the judge could be allowed to function, notwithstanding the inquiry. The committee opined that there was no provision of law in terms of which he could be prevented from discharing his judicial duties. As a result, the judge was allowed to resume work.

Shortly thereafter, Justice K.N. Singh became the Chief Justice of India (CJI). As President of the Supreme Court Bar Association, I requested him not to assign work to the judge. He said that his tenure was very brief (about 18 days) and I should approach his successor. When I approached Chief Justice M.H. Kania, after consulting a few senior advocates, he passed an order stating that if any lawyer appearing in a case raised objections, Justice V. Ramaswami would not hear his case.

The Sub-Committee on Judicial Accountability and the Supreme Court Bar Association filed writ petitions in the Supreme Court, inter alia, praying for a direction that no work should be assigned to Justice V. Ramaswami. A Constitution Bench rejected the prayer, observing that it was for the CJI to decide whether to assign work to the judge or not. The Constitution did not contemplate any such interim direction being given during the inquiry into the alleged misbehaviour of a judge. The Bench hoped that the learned judge would be guided by the advice of the CJI as a matter of convention unless he himself decided as an act of propriety to abstain from discharging judicial functions during the inquiry.

It is possible to suspend a judge facing an inquiry into charges of misbehaviour invoking Section 16 of the General Clauses Act 1897, read with Section 21. The President of India can suspend a judge facing such an inquiry in consultation with the CJI and the collegium. So far, no judge facing an inquiry under the Judges (Inquiry) Act, 1968, has been placed under suspension. It is advisable to insert a provision in the Bill for the suspension of a judge and payment of some subsistence allowance during the period of suspension.

It is high time to consider whether the removal of judges should depend on the vote in Parliament. The perception of corruption by a large number of members of Parliament is likely to be different from the perception of the chairman and members of the inquiry committee or the Oversight Committee. The MPs who notice large-scale corruption right under their nose may or may not appreciate that the misbehaviour of a judge found by the committee warrants his removal. In the prevailing circumstances, is Parliament best suited to take a final view on judges’ misbehaviour? In any event, so long as impeachment is uncertain, it cannot be a deterrent.

Irremovability tends to encourage corruption, indiscipline and irresponsibility. It is not easy to proceed against a judge under the Prevention of Corruption Act either. In K. Veeraswamy’s case, the Supreme Court declared that no criminal case could be registered against a judge unless the CJI was consulted in the matter. This is in addition to the requirement of sanction for prosecution in Section 19 of the Prevention of Corruption Act.

There have been instances where Chief Justices declined to allow prosecution of judges alleged to be corrupt. It is, therefore, necessary to find another way out to get rid of the black sheep and save the judiciary from corruption. It is desirable to make a provision in the Constitution for premature retirement of judges of doubtful integrity at any time without prescribing any minimum qualifying service on the recommendation of the collegium. The problem of judicial accountability will be minimal if proper persons are appointed. To have persons of ability and integrity, the post of a judge should be made attractive to leading and deserving members of the Bar. This will help in ensuring justice of high quality. The Bill is good, but inadequate to solve the problems of judicial accountability.

The writer is a senior advocate, Supreme Court of India.



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