Questions over judicial council

A Parliamentary Standing Committee seeks to remove the pro-Judiciary bias in the Judges (Inquiry) Bill, 2006.

in New DelhiE.M. Sudarsana Natchiappan,

THE Judges (Inquiry) Bill, 2006, can be traced to a serious admission by the government that it has no constitutional competence to set up a committee to look into allegations levelled against judges of the higher judiciary. Under the Judges (Inquiry) Act, 1968, only the Lok Sabha Speaker or the Rajya Sabha Chairman can admit a complaint relating to the misbehaviour or incapacity of a judge and constitute a committee to inquire into it. The Bill seeks to create an institutional framework to deal with complaints against judges of the Supreme Court and High Courts by replacing the 1968 Act.

The Bill, introduced by the government in the Lok Sabha on December 19, 2006, was referred to the Standing Committee on Personnel, Public Grievances, Law and Justice. The 26-member committee, chaired by E.M. Sudarsana Natchiappan of the Congress, has presented its report after eliciting public opinion and hearing the oral evidence of 25 individuals representing different organisations and experts.

The rationale for the Bill stems from the fact that the Constitution provides only for removal of a judge from office and does not have provisions dealing with judicial misconduct and misdemeanour inviting measures short of removal. Again, under the 1968 Act, citizens or authorities other than Members of Parliament cannot register complaints of judicial misconduct. The committee has noted that these factors, coupled with judicial delays and impropriety, have by and large lowered considerably the image of the Judiciary in the public eye. There has been perceptible deterioration in the conduct of many of the judges within and outside the court, thus raising the issue of evolving a mechanism to scrutinise the conduct and behaviour of such judges, says the report.

The Bill seeks to establish a National Judicial Council (NJC) to undertake preliminary investigation and to inquire into allegations of misbehaviour or incapacity of a judge of the Supreme Court or of a High Court. The Bill also seeks to regulate the procedure for such investigation, inquiry and proof and to impose minor punitive measures and for the presentation of an address by Parliament to the President.

The Bill creates two procedures called reference and complaint. Under the reference procedure, the Rajya Sabha Chairman or the Lok Sabha Speaker can make a reference to the NJC for an initial inquiry into allegations contained in a notice for removal of a judge admitted in the House.

Under the complaint procedure, any person may make a complaint in writing to the NJC in respect of a judge. If the complaint is found to be false, vexatious and not made in good faith, the complainant is liable to be punished with imprisonment for a term of up to one year and also a fine of up to Rs.25,000. (The committee has suggested that the NJC can so punish the complainant only after due process of inquiry.)

The committee has pointed to a serious discrepancy in these provisions. A notice for the removal of a judge can be admitted in the Lok Sabha only if it has the signatures of not less than 100 members and in the Rajya Sabha only if it has the signatures of at least 50 members. Only after the notice is admitted can the Presiding Officer of the House make a reference to the NJC to probe the allegations. However, under the complaint procedure a single person can make a complaint to the NJC.

The committee has found that the reference procedure, rather inexplicably, imposes a much higher threshold requirement in the form of obtaining the signatures of several Members of Parliament. Under the complaint procedure, one individual is treated on a par with 100 MPs, the committee felt.

The committee has recommended the formation of a broad-based empowered committee as part of the NJC. This committee, it has opined, must have representation not only from the Judiciary but from the Executive, Parliament and the Bar and must be entrusted with the responsibility of screening complaints, including those referred by the Presiding Officers of Parliament after the admission of a notice for removal of a judge.

In its present form, the Bill provides for a five-member NJC all drawn from the Judiciary comprising the Chief Justice of India as the Chairperson, two senior-most judges of the Supreme Court and two Chief Justices of the High Courts to be nominated by the Chief Justice of India.

The Bill seeks to exclude the Chief Justice of India from the purview of the complaint procedure to be initiated by a person. The committee has disapproved of this exclusion, suggesting that complaints can be made against the Chief Justice of India also.

Clause 20 of the Bill makes provision for the following: If after an inquiry the NJC is satisfied that all or any of the charges in regard to a judge have been proved and if it is of the view that the charges do not warrant his or her removal, it may impose all or any of the following minor measures: issuing advisories; warnings; withdrawal of judicial work for a limited period of time, including cases assigned to the judge; requiring that the judge retire voluntarily; and censure or admonition, public or private.

Of these, the committee has recommended the deletion of the measure requesting the judge to retire voluntarily as it would amount to enabling the judge to bypass the accountability process. It has also recommended that the word minor in the clause may be changed to appropriate.

Clause 30 of the Bill makes provision for a judge, if aggrieved by the order of removal passed by the President, or a final order passed by the NJC imposing one or the other minor measures, to prefer an appeal to the Supreme Court. The committee has recommended the deletion of this clause as keeping it would defeat the very purpose for which the Bill was introduced.

Clause 33 of the Bill requires that all records and documents related to a complaint, its preliminary investigation and inquiry be confidential. The committee favoured the creation of an exception to make the final order of the NJC known to the people.

There are two minutes of dissent annexed to the committees report, one submitted by former Union Law Minister Ram Jethmalani and the other by Rajya Sabha member Virendra Bhatia. In his dissent, Ram Jethmalani argues that changing the method of initial recruitment of judges, and not creation of an NJC, could restore the prestige of the judiciary. Besides, he has contended that the system of minor punishments will expose the entire judicial system to ridicule and be totally counterproductive.

The committee also considered the question of appointment of judges and favoured the restoration of the pre-1993 position. In a judgment delivered in 1993, the Supreme Court obliterated the Executives role in the appointment of judges by according primacy to the Supreme Courts collegium comprising the Chief Justice of India and his senior-most colleagues.

More important, the committee has questioned the current policy of excluding the Judiciary from the ambit of reservation. Through a shrewd process of manipulation, the Indian Judiciary has been keeping the competent persons of the downtrodden communities from the purview of appointment of judges, the committee has said.