To probe judges

The draft Judges (Inquiry) Bill meant to replace the existing 1968 Act is criticised for enhancing the role of the judiciary in investigating charges against officers of the higher judiciary.

V. VENKATESAN in New Delhi

IN order to ensure judicial accountability, the National Democratic Alliance government brought the Constitution (98th Amendment) Bill in 2003 which provided for a National Judicial Commission for the appointment and transfer of Judges of the higher judiciary. The Bill had also sought to empower the commission to inquire into charges of misconduct or deviant behaviour against a Judge. It was referred to a Standing Committee of Parliament and it lapsed with the dissolution of the 13th Lok Sabha in January 2004.

Now, the United Progressive Alliance (UPA) government has come out with a draft Bill to replace the existing Judges (Inquiry) Act, 1968. The Act regulates the procedure for the investigation into an allegation of misbehaviour by or incapacity of a Judge and for the presentation of an address by Parliament to the President for removing from office a Judge, against whom the charges have been proved.

The Act enables the constitution of a three-member committee by the Lok Sabha Speaker or the Rajya Sabha Chairperson or by both once a motion for presenting an address to the President praying for the removal of a Judge is admitted in Parliament. The motion can be admitted only if 100 Lok Sabha or 50 Rajya Sabha members sponsor it. The committee includes the Chief Justice or one of the Judges of the Supreme Court, a Chief Justice of one of the High Courts, and one distinguished jurist.

The Act empowers the committee to frame definite charges against the Judge, on the basis of which investigation could be held. The committee, after giving reasonable opportunity to the Judge concerned to defend himself/herself, has to submit its report to the Speaker or the Chairperson or both. If the committee finds the Judge guilty, then its report, along with the motion, has to be considered by Parliament. It is only after the motion is adopted by each House of Parliament in accordance with the provisions of Clause (4) of Article 124 read with Article 218 of the Constitution (by a majority of that House and by a majority of not less than two-thirds of the members of that House present and voting), the guilty Judge can be removed from office by the President.

Since the failure of the Lok Sabha motion to impeach Justice V. Ramaswami, former Judge of the Supreme Court, in 1993 (Frontline, June 4, 1993), the judiciary and the executive have been grappling with the issue of making the judiciary accountable for its omissions and commissions. In order to make it difficult for the executive to interfere with the judiciary, the Constitution envisages an elaborate impeachment process in Parliament to remove a Judge from office. However, doubts have been expressed about the effectiveness of the process. Although a committee constituted under the Act found Justice Ramaswami guilty of misbehaviour, the motion failed to secure the support of the requisite number of MPs, as Congress members abstained themselves from voting.

The present draft Bill seeks to create a permanent inquiry committee in the form of a National Judicial Council (NJC). The Council shall consist of the Chief Justice of India (CJI) as its Chairperson, two senior-most Judges of the Supreme Court, and two senior-most Chief Justices of the High Courts - all nominated by the CJI. The non-inclusion of a "distinguished jurist" in the Council, as envisaged under the Act, shows that the reservations of the judiciary against tinkering with the existing "in-house procedure" to discipline the Judges has prevailed, though it has proved to be ineffective.

Says Raju Ramachandran, a senior advocate in the Supreme Court: "The draft Bill is completely judiciary-centric. There should be at least at the inquiry stage itself representation for other sections of the legal fraternity, like the Bar. As the administration of justice involves both the Bench and the Bar, a senior representative of the Bar at the level of the Attorney-General (or former Attorney-General) should also be part of the proposed National Judicial Council. The CJI himself could nominate a person of high professional eminence to the Council."

A major departure from the 1968 Act is that the NJC can entertain any complaint from anyone against a Judge. The Council can dismiss a complaint if it finds that it is frivolous or vexatious or that it is not made in good faith, or that there are not sufficient grounds for investigating it. In such cases, it will record its reasons for its decision and communicate the same to the complainant.

As the law stands today, a complainant against a Judge has to obtain the signatures of the requisite the number of MPs for the admission of the impeachment motion against the Judge in Parliament. As this is likely to discourage any potential complainant, the draft Bill facilitates hearing of complaints even from ordinary citizens. Such citizens need not fear the initiation of contempt of court proceedings against them.

Prashant Bhushan, convener of the Committee on Judicial Accountability (CJA), pointed out that since the failure of the impeachment motion against Justice Ramaswami there had been serious complaints against Judges, but it was impossible to get the signatures of a certain number of MPs to sponsor an impeachment motion.

The provision in the Bill allowing any citizen to file a complaint without obtaining the requisite number of signatures of MPs has been hailed as an improvement over the Act. Once the NJC finds substance in a complaint it can forward the same for consideration by Parliament directly. As per the draft Bill, if the NJC proposes to conduct any investigation after verification, it shall frame definite charges against the Judge, give him/her a reasonable opportunity to defend himself/herself, and complete the investigation within six months from the date of receipt of the complaint. If it finds no substance in the charges, it shall communicate its findings and recommendations to the President accordingly. If the charges are substantiated wholly or partly, the NJC shall communicate its findings to the President, the complainant and the Judge; the President, in turn, will cause the findings to be laid before both Houses of Parliament, and the government shall move a motion in either House of Parliament for presenting an address to the President praying for the removal of the Judge.

Where the NJC initiates an investigation on a reference from the Speaker or the Chairman, then it shall forward its findings directly to the Speaker or the Chairman. In both the cases - whether the Council initiates an investigation on a reference from the Speaker or the Chairman or on the basis of a complaint from a concerned citizen - its report, after the conclusion of the investigation, has to be considered by Parliament, before the motion is adopted in accordance with the Constitution. As such, the NJC is unlikely to have the final say in the removal of a guilty Judge.

During the pendency of the investigation or impeachment, it may recommend stoppage of assigning judicial work to the Judge concerned if it thinks it is necessary in the interest of fair and impartial investigation. However, there is a feeling in the Bar that a provision could have been made for withholding the salary of and giving a subsistence allowance to the Judge facing an inquiry.

The proposed NJC suffers from certain serious flaws. As a part-time body comprising sitting Judges of the Supreme Court and the High Courts, the amount of time and energy that it can spend on the consideration of complaints against Judges may be limited. If its members take their job seriously, their work on the Benches would suffer, and this could add to further judicial delays.

Section 28 of the draft Bill provides that the NJC shall from time to time issue codes of conduct which consist of guidelines for the conduct and behaviour of Judges, and that the Judges shall submit the details of his/her assets and liabilities at the time of appointment and then annually to the CJI or the Chief Justice of the High Court as the case may be.

A senior member of the Bar said: "The code of conduct should not be mentioned as a mere guideline. The Act itself should indicate that an infraction of the code of conduct would be deemed as misconduct. In the case of superior judiciary at least, there can't be any lesser punishment, and the Council should not think of minor penalties like censure for guilty Judges."

The government has referred the Bill to the CJI to elicit his suggestions. Indications are that the judiciary will approve the Bill as it only adds to its powers. The collegium comprising senior Judges of the Supreme Court already enjoys primacy vis-a-vis the executive over appointment and transfer of Judges. The new Bill, by empowering the NJC to decide complaints against Judges, would further enhance the powers of the collegium - whose composition is similar to that of the NJC - to discipline errant Judges.