We don’t know whether it’s fortuitously or fortunately but there have been instances of consensus among legislators over an issue which plays a major role in our Constitution. One such instance was repelling what used to be a fundamental right of “Right to Property”. This right was repelled after an amendment by the Congress government at the center.
When Janta Party came to power in 1977, it was adumbrated and presumed that the new government would restore this right due its opposition to constitutional amendments passed during authoritarian reign of Indira Gandhi. But contrary to the expectations, Janta Party never restored the right to property, sighting reasons of public welfare and agreeing with the Congress opposition. In some ways, it can be concluded that such instances and agreements keep the democracy alive and always bring a hope. Recently a similar incidence is in making with all parties and politicians, in one voice, raising questions and apprehension on the freedom of Judiciary. It is a subtle occasion when we see Arun Jaitely and Kapil Sibal in agreement and presenting the same opinion, i.e. on regulation of Judiciary and its selection and grievance redressal processes. For this purpose, Judicial Accountability Bill to replace the present Judges Inquiry Act, to make the accusation and impeachment process more flexible. To understand this issue, first it needs to be understood what actually the crux of Judges Inquiry Act is.
This act came into effect to regulate the procedure for the investigation and proof of misbehavior or incapacity of a judge of the Supreme Court/High Court or of the presentation of an address by parliament to the President for matters connected therewith. Basically it compiles with the provisions of Article 124(4) and Article 218 of our Constitution and lays down the procedure to be enacted. The very first step regarding this Act is presentation of the motion to the President which needs a backing of not less than hundred members, if presented by House of People and not less than fifty members, if presented by the Council of States. Thenceforth comes the role of the Speaker or the Chairman of the House (depending which House presented it) as to apply his discretion and admit or refuse the same based on any advice which he deems fit to take or not. Consequently a committee is constituted by the Speaker/Chairman of the House to investigate the allegations against the Judge. The committee shall consist of a judge chosen by the Chief Justice and other judges of the Supreme Court, other judge form the Chief Justice of different High Courts and a third person who in the opinion of Speaker/Chairman is a distinguished jurist. The committee shall frame definite charges against the judge which needs to be communicated to him/her with a statement of grounds on which the sub charge is based along with a tolerable time and opportunity to prepare a written defense. If the Judge is incapable of discharging his duties due to any physical or mental incapacity then the committee may organize for a medical examination by a medical board which shall present the final report. Based on this report the committee may again amend the charges and fresh time needs to be provided to prepare a defense. Central Government may even appoint a lawyer to advocate and conduct the case against the Judge if required by the Speaker/Chairman. If the report finds the Judge guilty then the motion coupled with the report may be taken up for consideration by the House or the Houses of Parliament where it is pending. If the motion is adopted by each House of Parliament in accordance with the provisions of clause (4) of Article 124 or, as the case may be, in accordance with the clause read with Article 218 of the Constitution, then the misbehavior or incapacity of the Judge shall be deemed to have been proved and an address praying for the removal of the Judge shall be presented in the prescribed manner to the President by each House of Parliament in the same session in which the motion has been adopted. This motion needs to be voted in favor by two-third majority of members present.
This is underlying the salient features of the Judges Inquiry Act and before advancing to the pros or cons or any kind of comparison it would be desirable to explain the much hyped Judges Accountability Bill so that a proper comparisons can be made.
As to start from the reason and intention behind this Bill, two quotes presenting contrasting are in order-
"The enactment of the Bill will address the growing concerns regarding the need to ensure greater accountability of the higher judiciary by bringing in more transparency, and will further strengthen the credibility and independence of the judiciary": Mrs. Ambika Soni, Minister GOI
"I would request the government that accountability be balanced with judicial independence. In enacting laws, the concept of judicial independence should not be lost sight of. For, decision independence and structural independence are more important when you are required to balance accountability and judicial independence.” Mr. Kapadia, ex-Chief Justice of India
It is quite contradictory in nature to see Mr. Kapadia stressing on judicial independence on number of occasions and at the same time projecting an image in form of advice that Judiciary is not afraid of the Legislative. May be this is the reason why Mr. Veerappa Moily drafted this bill in alacrity (in respect to Mrs. Sonis's and Mr. Kapdaia's comments). The Judicial Standards and Accountability Bill is a legislation which aims to increase accountability of the higher judiciary comprising of the Supreme Court and the High Courts. It is stated even in the Preamble and Statement of Objects and Reasons that it seeks to achieve this aim by establishing statutory judicial standards, instituting a system of public complaint against judges for misbehavior and incapacity and setting up a revised administrative mechanism to enforce and hear these complaints. This bill is very well disguised in Article 124(5) of our Constitution giving the power to one single person what previously could be done only by fifty or hundred members of the House. One of the provocative features is the clause stating, “judges not to make unwarranted comments and observations against Constitutional or Statutory Authorities or any person in the course of judicial determination". This contentious clause was added against the backdrop of remarks against Prime Minister and his cabinet during the trial of alleged scams. In fact in 2011, the Parliamentary Standing Committee had recommended that the Bill have a provision for judges to restrain themselves from making "unwarranted comments on Constitutional functionaries “following which this provision was added, but soon it was removed during an amendment.
Given their far reaching consequences, the actual provisions of the bill must be scrutinized. This bill proposes a five member oversight committee to deal with complaints against members of the higher judiciary, where anyone, any single common person can file a complaint. The proposed oversight committee will be headed by a former Chief Justice of India and include the Attorney General, a Supreme Court Judge, a Chief Justice of a High Court and an eminent person nominated by the President. On receiving a complaint, the committee will forward it to a system of scrutiny panels. In case of a complaint against a Supreme Court judge, the scrutiny panel will consist of a former Chief Justice of India and two sitting Supreme Court Judges. In case of a complaint against a High Court Judge, the panel will have a former Chief Justice of the High Court and two sitting judges. Members of the Supreme Court panel will be nominated by the Chief Justice of India and that of the High Court panels by the Chief Justice of the concerned High Court. The scrutiny panel would be required to give their report within three months to the oversight committee. In case of a complaint against a Chief Justice, the oversight committee itself will conduct the scrutiny. On receiving the report from the scrutiny panel, the oversight committee will setup another committee to further investigate the case and will have powers of a civil court, with additional powers to frame definite charges.
In case the charges are not proved, the investigation committee can dismiss the case. Otherwise, it would give a report to the oversight committee which can issue an advisory or warning if the charges are not too serious. In case, if the charges are found to be serious, the committee can request the judges concerned to resign. Later given the judge does not do so the oversight committee will forward the case to the President with ad advisory for his removal. Subject to such an event, copies of all relevant documents will be laid before Parliament and an impeachment motion would be moved in the House of People, in which not less than hundred would be required to move the motion and in the Council of States not less than fifty members would be required.
Contrary to its reformist claims, there are some pretty startling shortcomings in the bill. For say if a judge submits his/her resignation to the President mid-process it will automatically come into effect and the proceedings will precipitously come to and end. Even if one of the Houses passes the resolution and the resignation is submitted and accepted then the other House doesn't has to comply with the whole process. This drawback was noticed even in the Judges Inquiry Act and was expected to be sorted out by this new Bill but this never happened. It would be very intriguing for others to know that if the Judge resigns from his office he/she would be entitled to the same perks and benefits as a retired judge inimical to the fact that a Judge loses all his/her perks if is removed from the office through impeachment. It is not a vague fact that our judiciary does seems to enjoy the power they have been provided by the constitution and this instance depicts how they don’t want to let it go. These type of power hunger continues form the Mahabarat age to the current age and that this why it is said, “Power is Truth! Karma is darkness!”
But there are other issues which require prudence and further contemplation. In fact, the composition and tenure for the Investigation Committee which would probe into behavior of Judge is undefined. Also, two of the three members of the Security Panel will be the Judges of the same court against whom the complaint is lodged. Will it not compromise the process? Will there not be a conflict of interest when the Attorney General of India (who always has to appear on behalf of the government), who is a member of the Oversight Committee, would appear in the Court in front of the same Judges against whom a complaint is lodged. The other trickiest concept is that this process has full immunity from the provision of RTI. Judiciary has always tried to project itself as one of the champions projecting transparent corrupt free system but won’t allow an RTI against itself! It was predicted that this Bill would clear off all the disparities and there would be some provision as to bring back cases like that of Justice Ganguly and Justice P.D Dinakaran back into some sort of constitutional ambit but it couldn't be done with an excuse as to it would be a wastage of time and money. But then there is also a point as to why there are not one, not two rather three committees functioning in this whole process? Is this not wastage of time and money?
Though it is not that all has gone wrong. There are some prospects which also need to be appreciated such as provisions of in camera trials. In fact, Clause 53 enables the complaints to be checked as to whether it is false or a genuine one. A new dimension was added when it was asked of the Judges to declare the value of their assets online to all. In fact, it was also asked of the Judges to not to have close ties with any member of the Bar, especially those who practice in the same court. For a change, these are some welcome provisions but it can’t be left unnoticed that in the name of bringing in some good act and trying to regulate some of the Judiciary's freedom glaring loopholes have been left in the bill like the previous Judicial Inquiry Act.
Even though lot has been talked about the bill but it is difficult to understand as to why this Bill was drafted because loopholes and ambiguities are still present, the system is still not transparent and around half the committee is still from the Judiciary. So in short, what the Legislative wanted to achieve is not very clear. In fact, the Bill could not become an act despite wishes of the ruling party. But the hasty manner with which it was drafted betrayed a sense of urgency but why then the government didn’t actually fought for it? This is just another example which put forth one of the many failures of our UPA. It one more example of confusion and mess created by UPA regarding important legislations. Like many other occasions our UPA went on to become a victim of circumstances rather than being a master of circumstances. It is against the Law to be an idiot and our government defies the Law by doing such acts. At last what I would like to say that, "Writing a law is easy, but governing is difficult".
Let’s hope that the new government will actually govern and stop acting like toothless tiger. The Judicial reforms are an urgent issue facing the nation and the new government has its task cut out in this matter. It is clear that any new bill will draw from the Judicial Accountability Bill, therefore it is necessary to keep the issue under public watch and discussion. The new government should make law which is clear in content and intent so that they can be actually implemented because:
"If you violate laws of God, you're a sinner.
If you violate laws of men, you're a criminal.
If you violate your own laws, you're pathetic."