Originally Published 2011-12-26 00:00:00 Published on Dec 26, 2011
The Judicial Accountability Bill, looked at in a holistic manner, is indeed a step ahead to restore some of the fundamental values in the judicial bodies of the government -- integrity of the judges, transparency and independence of judiciary.
Judicial Accountability Bill: A step in right direction
The Union Cabinet on December 13, 2011 cleared the Judicial Standards and Accountability Bill, 2010 as part of its efforts to bring before Parliament a series of Bills to tackle graft in the country. Aimed primarily at cleansing the judicial system of India, the Bill's key objectives, as enunciated in its introductory text, includes a code of judicial standards and accountability of judges, establishment of credible and expedient mechanisms for investigations into individual complaints for misbehavior or incapacity of the judges of either the Supreme Court or the High Court, regulating the procedures for such investigations as well as presentation of an address by Parliament to the President in relation to proceedings for removal of judges.

The existing procedures for the above-mentioned objectives of the proposed legislation were previously regulated by the Judges (Inquiry) Act, 1968. In the intervening period, the resolutions and concept papers have been written on the major objectives of the Bill. Some of the major ones include a resolution adopted by the Supreme Court on (a) Restatement of Values of Judicial Life and (b) In-House procedure within the judiciary. A concept paper was also prepared on the National Judicial Commission by the National Advisory Council in 2005.

The immediate context of this Bill is the eroding institutional accountability of especially the Supreme Court and High Courts. In the past decade, the working of senior judges of the judicial bodies has come under intense scrutiny, especially on charges of nepotism, corruption and partisanship. It is in the light of these considerations that the Judicial Standards and Accountability Bill is analysed.

Key Features

According to the proposed Bill, all judges of the Indian judiciary are expected to declare their assets and liabilities to the requisite authority which can be reproduced as and when investigations are necessary on charges of assets disproportionate to known sources of income. The Bill also lays down specific judicial standards for judges, including the cases involving relatives and family members not to be decided by the judges related to them. It refrains the judges from offering political views on any subject matter to be specifically decided by them and debars them from hearing cases involving organizations, societies, trusts etc. in which his family members/relatives etc. have a stake.

One of the major highlights of the Bill is the establishment of the National Judicial Oversight Committee, the Complaints Scrutiny Panel and an Investigation Committee. While the Investigation Committee as the name suggests has the responsibility to inquire into charges of misbehavior or incapacity of the judges, it is the composition of Oversight Committee that merits serious attention. One of the foundational principles of liberal democracy is the need to maintain distance between the judiciary and the executive i.e. the judiciary in its decision making process ought to follow the rule and arrive at a decision on purely reasonable and logical grounds and any political pressure from the executive must be resisted and rejected at all costs.

The rot which has set in certain sections of the judiciary is a result of arriving at judicial decisions on grounds extraneous to the cogent process of decision making. It is herein that the Oversight Committee steps in to ensure that the judges dutifully perform their requisite functions and avoid what the Bill terms as "misbehavior" or incapacity. The Oversight Committee will consist of a retired Chief Justice of India as the Chairperson, a judge of the Supreme Court nominated by the sitting Chief Justice of India, a Chief Justice of the High Court, the Attorney General for India, and an eminent person appointed by the President.

Considering the fact that in the past allegations have been made against even the senior most judges of the Supreme Courts, it is necessary to appreciate that to decide on matters involving previous colleagues does have the potential of a bias. To ensure this, it is necessary to include members from outside the judiciary, especially those with strong legal credentials. These could include law professors, social activists with a "substantive understanding of the law", corporate lawyers etc. This will achieve twin objectives i.e. (a) deflate the widely held opinion, especially by certain senior lawyers of the Bar, that the higher judiciary often has "vested interests" and therefore cannot be expected to take a strong stance against corruption, nepotism, misbehavior etc, (b) will help to restore a much needed semblance of transparency in the public perception that the judiciary is open to other members enquiring into their misdeeds if any and has nothing to hide.

The biggest fear that has been expressed that there will be unnecessary interference in the workings of the judiciary is unfounded and unsubstantiated by any logical reasoning. It will in the longer run improve the public understanding of certain pertinent issues which have plagued the judiciary and will prevent such occurrences in the future. The judiciary which is still revered by many as credible, fair, sensitive and an institution of last resort will get a much needed respite.

The Scrutiny Committee empowered with the powers of initial investigation has the authority to screen out frivolous or vexatious complaints. As a penalty measure, it has also ensured a rigorous imprisonment of up to 5 years and a fine up to five lakhs of rupees. Keeping in consideration the presence of motivated interests to defame the judiciary, it is indeed a commendable provision, though the penalty measures appear to be a trifle too harsh. With respect to the motion to remove judges, it can be introduced in Parliament by the Members of Parliament. If the notice is admitted, it can be referred to the Oversight Committee for enquiry.

With regard to the High Courts, it is necessary that the proposed changes as stated above in the Oversight Committee be ensured since corruption in the High Courts is often rampant and in some cases it is institutionalised and considered the norm.

The Judicial Accountability Bill, looked at in a holistic manner, is indeed a step ahead to restore some of the fundamental values in the judicial bodies of the government i.e. integrity of the judges, transparency, independence of judiciary and decision making derived from reasoned analysis at all levels of the judicial architecture in the country.

(Samya Chatterjee is a Research Assistant with Observer Research Foundation)

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