Will the National Judicial Council improve on existing measures?

The Union cabinet is reported to have decided to introduce a new version of the Judges (Inquiry) Amendment Bill. The 2008 Bill is believed to provide for establishing a National Judicial Council to inquire into allegations of “misbehaviour” or “incapacity” — the two grounds laid down for the removal of a judge of the Supreme Court or a high court. Action for initiating impeachment proceedings against a judge is being talked about and questions are being asked in regard to the provisions and procedures. Actually, the first thing to be remembered is that despite the widespread myth and use of the term in the media and elsewhere, there is no provision in the Indian Constitution for ‘impeachment’ of a judge of the Supreme Court or a high court. ‘Impeachment’ proceedings are provided for only in the case of the president of India and for none else. Also, there is a fundamental difference between removal procedure and impeachment procedure and between the impact of the adoption of a motion for impeachment and the passing of a motion for presenting an address to the president seeking orders for the removal of a judge. The grounds for the impeachment of the president have to concern “violation of the Constitution” while an address for removal of a judge has to be on the ground of “misbehaviour or incapacity”. In case of impeachment, the moment the motion is passed by the two Houses, the president ceases to be president. But in case of the motion for removal, it is for the president to consider issuing necessary orders. Article 124 of the Constitution in effect provides that a Supreme Court judge can be removed from his office by a presidential order passed after an address by each House of Parliament supported by a majority of not less than two-thirds of the members of the House present and voting is presented to the president in the same session for such removal on the ground of proved misbehaviour or incapacity. Article 124(5) specifically lays down that Parliament may by law regulate the procedure for the presentation of an address and for the investigation and proof of the misbehaviour or incapacity. In pursuance of Article 124 (5), Parliament passed the Judges (Inquiry) Act, 1968. The Judges (Inquiry) Rules, 1969 lay down the details of procedure for investigation and inquiry into the allegations against a judge. If not less than 100 members of Lok Sabha or 50 members of Rajya Sabha give notice of a motion for the removal of a judge on grounds of some definite allegations of misbehaviour or incapacity, the Speaker/chairman of Lok Sabha/Rajya Sabha, would decide the admissibility of the motion. If the motion is admitted, a committee would be appointed for holding the necessary investigations. The judge concerned would be provided with reasonable opportunity for defence. If the committee found the judge not guilty of “any misbehaviour”, and not suffering from “any incapacity”, then the whole matter would be dropped forthwith. If, however, a verdict of guilty of misbehaviour or of incapacity was returned by the committee, the House would proceed to consider the motion. If the motion was passed by majority of the total membership of each House and more than two-thirds of those present and voting in either case, misbehaviour or incapacity of the judge shall be deemed to have been proved and an address shall be presented to the president during the same session of Parliament for the removal of the judge. History of sorts was perhaps made on May 10, 1993. It was the last day of the last session of the ninth Lok Sabha when for the first time ever a sitting judge of the highest court of the land, Justice V Ramaswami, was arraigned for trial before the Lok Sabha on charges of misuse of funds for purchase of 25 silver maces for brother judges and furniture, furnishings, carpets and electrical appliances, including air conditioners, in excess of the permissible limit of Rs 38,500, use of the staff car for private trips and paying from the public exchequer heavy telephone bills without separating private calls. Speaker Rabi Ray admitted the motion and announced a threemember committee. Soon after the announcement, the House was adjourned in the midst of grave disorder. The three-member committee found that certain charges in regard to misuse of funds stood established. Even through the committee held Justice Ramaswami guilty of misconduct, when the matter came up before the Lok Sabha, the motion for presenting an address to the President for his removal was lost for want of the requisite number of votes. It was said that the matter had become highly politicised. The Congress members absented themselves from voting. Justice Ramaswami retired only on his normal scheduled date of retirement on February 15, 1994. It is to be seen whether investigation and inquiry by the now proposed National Judicial Council composed of only persons from the judiciary will prove to be an improvement over the existing procedure of investigation and inquiry by an ad hoc committee appointed by the Lok Sabha or Rajya Sabha.

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