Draw The Blinds

J.S. Verma

, Former CJI

Hosbet Suresh, Ex-Judge, Bombay HC "The NCJ has the power for only 'minor procedures'. The bill's provisions are meaningless."

K.T. Thomas, Former SC judge "We need to give statutory nod to a system other than impeachment to discipline judges."

Prashant Bhushan, Supreme Court Lawyer "The independence of the judiciary should not mean that we can escape self-accountability."

s the Judges (Inquiry) Bill, 2006, a toothless tiger? By all accounts, the draft of the bill approved by the Union cabinet is a highly watered down version of the one proposed last year. The conservative views of the members of the judiciary, involved in the process of finalising the draft bill, seem to have prevailed. In effect, what was touted as a tough legislation that would make judges accountable and their functioning transparent has been defanged.

The initial draft of 2005 had sought to make the process of appointment of judges transparent. The government has been forced to drop this provision altogether. Ditto, the proposed rule mandating judges to declare their assets at the time of appointment and then annually. Even a move to set up an inquiry mechanism that includes eminent citizens outside of the judiciary hasn't been found acceptable by the judges lobby.

So the bill in its final form, to be tabled in Parliament in the ongoing winter session—to replace the existing 1968 Act—basically envisages only a self-regulatory mechanism for judges. According to it, a National Judicial Council (NJC) will be set up to look into complaints against judges of high courts and the Supreme Court. It will be headed by the Chief Justice of India (CJI), and will include two seniormost Supreme Court judges and two seniormost high court chief justices as members. There won't be outsiders.

Former judges have been kept out of this mechanism on the insistence of CJI Y.K. Sabharwal. He also prevailed on Union law minister H.R. Bharadwaj to ensure exclusion of high court judges in inquiries against Supreme Court judges. In such cases, the NJC will include all five senior judges of the apex court.

The bill has evoked mixed reactions from the judicial fraternity. Many feel it isn't tough enough. Justice Hosbet Suresh, a former judge of the Bombay High Court, calls it a "farce of a bill'' and the provisions under it "meaningless''. Says he: "It is the same collegium that appoints judges. Nowhere else in the world does it happen. We need a bigger collegium; it could probably include some representatives of the PM, university professors and the leader of the opposition—the way it is in other countries.''

Justice Suresh points out another "fundamental flaw". He notes that the NJC is empowered only for "minor procedures" as it will ultimately be up to Parliament to impeach a judge found guilty by the council. ("Procedures" is the word that the judicial lobby insisted on rather than "penalties.'') In short, the NJC cannot take any stringent action.

Former CJI Justice J.S. Verma, an ex-chairman of the NHRC, also finds fault with the bill on this count. He says the removal procedure through impeachment by Parliament should only be an alternative. "The law should enable the President to enforce removal once the NJC has held a judge guilty," he says. He cites the example of the only impeachment in Indian history, where Justice V. Ramaswamy was held guilty by the inquiry panel but let off by Parliament.

But Justice Verma is opposed to inclusion of outsiders in the NJC. "Adjudication is the function of judges, and should be left to them. When they can adjudicate all matters, why not a case against a fellow judge? Outsiders may erode the independence of the judiciary,'' he says.

Supreme Court lawyer and civil liberties activist Prashant Bhushan doesn't agree: "Independence of judiciary does not mean independence from accountability. This self-accountability is akin to a judge sitting to decide his own case.'' He sees no reason why the NJC can't accommodate outsiders or eminent people from public life. "It won't be easy for an in-house council of five judges to say anything against fellow judges,'' he says.

According to the proposed bill, a complaint may be sent to the NJC regarding "misbehaviour or incapacity'' of a judge. "Misbehaviour'' includes "wilful or persistent conduct which brings dishonour or disrepute to the judiciary; or wilful or persistent failure to perform the duties of a judge; or wilful abuse of judicial office; corruption, lack of integrity; or committing an offence involving moral turpitude; and includes violation of code of conduct.'' "Incapacity'' means mental or physical inability to perform the duties of a judge. The bill for the first time provides for setting up of a medical board to examine the judge in question.

In the case of a complaint against the CJI, the seniormost Supreme Court judge will head the NJC. "It is a paradox. How can you have five subordinate judges—over whom the CJI has administrative control—inquire into a complaint against him,'' asks Bhushan. According to him, for any unbiased and realistic inquiry, one needs an independent body with an investigative machinery.

Justice K.T. Thomas, a former Supreme Court judge, feels the need for a system other than impeachment to discipline the judges. This was the system already in place, and the bill has only given it statutory recognition. "The system has been effective, there have been cases where a judge has been kept without work or even transferred from a particular case or bench,'' he says.

Most lawyers and former judges Outlook spoke to didn't think the system effective. The proposed bill, they felt, was old wine in a new bottle. This, when it had given the government an opportunity to make the higher judiciary more accountable and transparent.