Provisions For Judicial Accountability

Constitutional Provisions And Judges Inquiry Act

From reading the preamble of the constitution, it becomes evident that “Justice is placed higher than the other principles of ‘Liberty’, ‘Equality’ and ‘Fraternity’.
The task to secure justice has been specially assigned to judiciary, and this may be the reason, as to why there have been so much of provisions in the constitution regarding the independence of judiciary. The members of Constituent Assembly were very much concerned with the question of independence of judiciary and, accordingly made several provisions to ensure this end. The Supreme Court has itself observed: “The constitutional scheme aims at securing an independent judiciary which is the bulwark of democracy”. However, this independence has been misused by the judicial fraternity in number of circumstances as discussed above.

From the process of appointment, till the procedure for impeachment, almost all the provisions which was included in the constitution for better functioning of the judiciary, has been misused by the it.

Constitutional Provisions Regarding Appointment:

It is evident from the bare provisions that our constitutional makers did not wanted the appointment of judiciary exclusively in the hands of executive. Although it was clear that there should be effective involvement of the chief justices in the appointment of judges, but it was not clear as to who will have the last word in appointment. This created a lot of confusion when the regular course of appointment, {i.e: the senior most judge would become the chief justice} was broken. It led to First Judge case of S.P. Gupta V. Union of India, in which it was held that CJ did not have the last word in the appointment. However, this was overruled in the Second Judges case, Supreme Court Advocates on Records Association V. Union of India. In this case, it was held that the opinion of the Chief Justice of India, as a consultee would have to be final opinion which must prevail in the appointment of a judge. The opinion of the CJI is to be formed collectively, that is to say, after taking into account the views of his senior colleagues who are required to be consulted by him for the formation of his opinion. Thus through this judgment the executive element in the appointment process is reduced to the minimum and any political influence is eliminated.

This process of appointment is now settled. However, it is criticized as being arbitrary, adhoc and non-transparent. “A judiciary which has total control over its own composition would have a conformist outlook. Collegiums which decides the matter in secrecy lacks transparency and is likely to be considered a cabal. Prejudice and favor of one or other member of the collegiums for an incumbent cannot be ruled out”.

Recently, this appointment procedure, again raised a strong criticism, when Justice Dinakaran name has been recommended, along with four others by the Supreme Court collegiums for elevation as judges of the Supreme Court.

Provisions Regarding Impeachment:-

The question of removal of a Judge before the age of retirement is an important one as it has a significant bearing on the independence of judiciary. The Constitution provides that High Court and Supreme Court judges cannot be removed except by impeachment. That process requires signatures of 100 MPs of the House of People or 50 MPs of the Council of States for its initiation. If a motion containing charges of serious misconduct with the requisite signatures is submitted, and admitted by the Speaker of the House of People or the Chairperson of the Council of States, an Inquiry Committee of 3 judges is constituted to hold a trial of the judge.

Only if he is found guilty, the motion is placed before each House of Parliament where it has to be passed by a 2/3 majority of each House.

Art 124(5) also provides that parliament may pass any law and lay down detailed procedure according to which the address of Impeachment may be presented and the charge of misconduct or incapacity, against the Judge, may be investigated and proved. Accordingly, the parliament enacted The Judges (Inquiry) Act, 1968. This Act was a legislative attempt to hold the judges accountable for their acts of omissions and commissions. An attempt was made to amend this act by way of Judges (Inquiry) Bill 2006. However this bill has now lapsed and the Judicial Accountability Bill 2010 seeks to replace the act.
The first ever impeachment proceeding under this law was that of Justice V. Ramaswami. Despite the motion for removal being passed unanimously by the members who voted, it failed to impeach, as the members of ruling party abstained themselves from voting.

This experience has shown that it is practically impossible to remove a Judge through impeachment even if one is somehow able to get documentary evidence of serious misconduct. The failure of motion raised certain grave question about the integrity of the judiciary and the administration of justice.
Currently, the impeachment proceeding is going on against Justice Soumitra Sen of the Calcutta High Court. The case of Justice Dinakaran of the Sikkim High Court (earlier in the Karnataka High Court) is under investigation.

Significant Provisions And Authorities Under The Proposed Act :-

The background and the need for the accountability bill have already been explained. There are some new provisions in the act which seek to address the prevailing situation of infirmity. The bill, if enacted will repeal the Judges’ Inquiry Act, 1958 or will have overriding effect on it.
The proposed accountability bill includes certain new and demanded provisions for maintaining discipline and transparency in the judicial organization. These are:

· Mandatory disclosure of assets and liabilities of not only judges, but also of their spouse, children and other near relatives.

· Certain activities of judges are prohibited and restrained keeping in view the code of conduct required to be maintained by them. Some of them are:

· A prohibition is been placed on keeping close association with a member of bar who practices in the same court.

· Family members, who are also the member of the bar, cannot use the judge’s residence for professional work.

· A judge also cannot hear or decide a matter in which his family or relatives are involved.

· Also, a judge cannot enter into public debate on any matter which he likely to decide.
The abovementioned provisions are only few illustrations of new changes been proposed to made into the judicial ambit.

A significant change will also be made in the process of removal of judges. The existing provisions for impeachment have been proved as unworkable and insufficient to remove a judge or punish him for his misdeeds. Let us now examine the existing provision and the proposed changes.

Under the existing law of Judges (Inquiry) Act, the complaint has to be filed by a Member of Parliament. The new bill provides that the complaint can be filed by any person. The complaint can be made to the Speaker of Lok Sabha or to the Chairman of Rajya Sabha. In addition to this, under the new bill the complaint can also be made to the Oversight Committee set up under the Act.

Authorities Under The Act :-

The bill recommends a complete new set of arrangement for complaint mechanism and procedures after that. However, this has been much controversial as regards to judicial independence.
The bill establishes three authorities, or we can say three steps for looking into the alleged complaints. These are:

· The National Judicial Oversight Committee;
· The Complaints Scrutiny Panel; and
· Investigation committee.

Let us now examine these authorities:

· National Judicial Oversight Committee: It will consist of a retired Chief Justice of India as the Chairperson, a judge of the Supreme Court, a Chief Justice of the High Court, the Attorney General for India, and an eminent person appointed by the President. The Oversight Committee shall have supervisory powers regarding investigation into complaints against judges, and also the power to impose minor measures.

· 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. The Panel shall conduct an initial investigation into the merits of a complaint made against a judge. It shall also have the power to report frivolous or vexatious complaints. Persons making frivolous or vexatious complaints can be penalized by rigorous imprisonment of up to five years and fine of up to five lakh rupees.

· Investigation Committee: will be set up by Oversight Committee to enquire into complaints. The investigation committee will be set up if the Scrutiny Panel recommends that an inquiry should be carried out to investigate a complaint. The Bill does not specify the qualifications of members of the investigation committee, but leaves this to the discretion of the Oversight Committee.

Defective Composition :-

As we examine, the composition and the powers of each committee, we will find that it consists mainly of the members from judicial fraternity itself. This may again prove as an encumbrance in dealing with complaints effectively.

It is always that judiciary is never acceptable of any third person for any of the matter within its framework. The defense of judicial independence is always there with it. Even in the oversight committee, there is mention of only one “eminent person” and Attorney General. This “eminent” person may or may not be a judicial person. Even though s/he is not a judicial person, his opinion may not be of much weight age, as the majority decision of the committee will always be considered.

One of the biggest defaults in the composition of the committee is that, it consists mainly of the sitting judges of high court or Supreme Court. This leads us to the general believe that the opinion of the judge might be influenced by any political or extra judicial considerations. Moreover, we are already facing a crisis of lack of judges in the courts and because of this large no. of pending cases are also there. In these scenarios, appointment of any judge for this function is not feasible, as the function of investigation can be carried out even by administrative personnel also.

Another point of defect in the composition is that of the inclusion of a Attorney General. Attorney General represents the government in courts. It is possible that previously Attorney General might have appeared before a judge against whom allegations have been made. This will surely amount to conflict of interest.

One of the commendable things is that the scrutiny committee has to set up in each of the high court and also Supreme Court. However, the composition of this committee is even more dangerous. This committee shall consist of a sitting judge of that high court or Supreme Court. This judge’s opinion is bound to be influenced, when he is deciding the case against one of his colleagues.
Clearly, this composition violates the basic norms of equality and natural justice. For example, a thief cannot investigate into charges of another thief; similarly a judge should not decide or investigate into a case of another judge.

The composition of members of investigation committee is not mentioned in the bill. This again gives the independence and flexibility to include any person in the committee. No doubt, that this membership will also be politicized.

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