The who, when, why and how

The who, when, why and how M.R. Madhavan The issue of conduct and accountability of judges is again making headlines. Under our current system, all subordinate judges are governed by and accountable to the respective high courts. For the higher judiciary, the only disciplinary action allowed against a judge is that of impeachment. This paper carried an op-ed describing how judges can be removed from office, and the proposed bill that modifies this process. Four significant changes are being proposed in the Judges (Inquiry) Bill, 2006. First, any person may complain against a Supreme Court or high court judge; currently, 100 Lok Sabha MPs or 50 Rajya Sabha MPs are required to initiate the process. Second, the bill proposes a National Judicial Council (NJC) consisting of Supreme Court and high court Judges to conduct an inquiry . Third, it provides for minor measures such as issuing advisories and warnings, withholding work, asking the judge to resign, and censuring privately or publicly. Fourth, it allows the judge to appeal to the Supreme Court against the finding of the NJC and even against the final order of removal. There are four conceptual issues that need to be addressed by Parliament. First, who judges the judges? Opinion on this is divided. The Supreme Court has held several times that judicial accountability should be enforced by the judiciary itself. It has also ruled that the president has to heed the advice of the serving judiciary while appointing judges. The law commission in its 195th report stated that the judiciary must be held accountable, but that the oversight should be with a committee consisting solely of the serving judiciary. It argued that this is the norm on the independence of the judiciary. However, the standing committee while examining this bill stated that the composition of the proposed NJC “is not in consonance with the principle of accountability.” It stated that either the NJC should be expanded to include non-judicial members representing the legislature and the executive or alternatively, an empowered committee, with members from the judiciary, executive, legislature and the bar, should be set up to screen complaints before they are investigated by the NJC. International practice also varies: Canada, US and Germany have only judges in the investigating bodies whereas England, Wales and South Africa include lay persons. Second, can a judge impeached by Parliament appeal against his removal? In 1992, the Supreme Court held that the question of judicial review would arise only after the impeachment motion was passed by Parliament. The law commission relied on this judgment and determined that the remedy of judicial review cannot be ousted because it is part of the “basic structure of the Constitution and cannot be removed even by constitutional amendment”. However, the standing committee has recommended against including any provision for appeal after a removal order has been passed by the president following an impeachment motion in the Parliament. The committee said that constitutionally mandated due process is inherent in the process for removal, and any appeal would amount to an action against the constitutional authority of the president. Third, should any lay person be allowed to file a complaint? The standing committee has observed that “an individual is being equated with 100 MPs of Lok Sabha and 50 MPs of Rajya Sabha for making a complaint against a judge”. It recommended that an impartial empowered committee, comprising of members from the legislature, executive, judiciary and the Bar should be created to screen complaints, and recommend which ones need to be investigated by the NJC. Fourth, are the “minor measures” constitutional? The Constitution is silent on this. The law commission stated that the NJC should be enabled to impose minor measures against the judge if he was found guilty and the offence did not warrant removal. It stated that the US and Canada have established minor measures to discipline judges despite having no such clause in their constitutions. The US Supreme Court has upheld the constitutionality of such measures reasoning that it was permissible for the judiciary to regulate itself and set its own house in order. The standing committee felt that the bill did not need a constitutional amendment but nevertheless it stated that “the issue of constitutional validity of this bill be thoroughly examined once again before proceeding further with the bill because many witnesses including jurists were of the opinion that this Bill will not withstand constitutional validity in its present form”.

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