Not so judicious

Governance Now, Oct 16-31

The judicial accountability bill proposes an oversight committee that is neither independent nor permanent in nature


The Judicial Standards and Accountability Bill of 2010, which was approved by the union cabinet on October 5, is yet another formulation in the decades-long endeavour of the government to bring in transparency and accountability in the higher judiciary. Meant to replace the Judiciary (Inquiry) Act of 1968, the latest formulation provides for a “national oversight committee” with which anyone can lodge a complaint against the higher judiciary, including the chief justice of India (CJI) and the chief justices of high courts. The oversight committee will be a five-member body, which will be headed by a retired CJI, one judge each from the apex court and the high court who will be nominated by the CJI, the attorney general and an eminent person nominated by the president.

Once a complaint is received, it will be forwarded to a “scrutiny panel”. If the complaint is against a supreme court judge, the panel will consist of a former CJI and two sitting apex court judges and if it is against a high court judge, the panel will have a former chief justice of high court and two of its sitting judges. This panel will submit its report in three months. In case the complaint is against a chief justice, the oversight committee itself will carry out the scrutiny. If charges are found correct, an “investigation committee” will go into it and the action will follow. If charges are not serious, the oversight committee will issue an advisory or warning. But if serious, the judge will be requested to resign, failing which the oversight committee will recommend his removal to the president. In such an eventuality, the impeachment proceeding will begin as per the existing system of impeachment.

There are two other key features in the proposed bill. One, the judges will be required to file annual return of assets and liabilities of their own, their spouse and children and will be put up on the websites of the respective courts. Two, the judges will be prohibited from having close association with lawyers who practise in the same court, permit relatives to appear before him or hear a case involving their family, close relatives or friends. Besides, there are other don’ts like not to contest elections to any club, association connected with the law or any court, not to air views on political issues or pending cases and not to speculate in securities or indulge in any trade or allow official residence for professional work by family members.

It must be acknowledged that these are quite radical steps, especially in view of the fact that there is no legal mechanism to deal with the complaints against judges and an in-house system that exists doesn’t really work, which was evident in the way complaints against Justice PD Dinakaran and Justice Nirmal Yadav were dealt with. Impeachment has not been able to remove even one judge for misconduct in the past 60 years because of the stiff conditionalities and reluctance of the politicians to antagonise the judiciary.

But the proposed bill falls short of expectations in one crucial area. The oversight committee consists of a majority of ex-officio members. To expect sitting judges to sit on judgment over the misconduct of brother judges, who could be their senior (if the complaint is against the CJI, for example) or with whom they may be sharing the bench every day, is expecting too much. So is the case with the attorney general who has to practice in their courts. The scrutiny panel too suffers from the same shortcoming and can’t be expected to do any better than the in-house mechanism that exists now. Apart from reluctance, ex-officio members may be short on time and motivation. As Prashant Bhushan, senior advocate campaigning for judicial accountability for many years, has been pleading, such a body has to be an independent and permanent body, members of which should be drawn from a wider catchment area and involving various other institutions like the leaders of opposition, human rights bodies, CEC, CVC and CAG etc.

The problem with the nature of the oversight committee becomes even more acute when we realise that the judges self-appoint themselves through a collegium, which consists of a group of senior judges of the apex court. This is an opaque system and needs to be replaced with an outside body, without which any talk about transparency and accountability in judiciary is meaningless. The bill should start from there, instead of overlooking it.