The passing of Judicial Standards and Accountability Bill, 2010 also forms part of the ‘To Do’ List for Indian Parliament this winter. Unfortunately, the bill seems to have evoked minimal discussion within the legal community and civil society, may be because it is clubbed with titans like the Lokpal Bill.
No one has a case against the relevance of this bill which requires judges to declare their assets, lays down judicial standards, and establishes processes for removal of judges of the Supreme Court and High Courts. This bill which has been pending for a while was also in the limelight in recent times, especially during instances of allegations of misconduct against judges, both sitting and retired.
Appointment of Higher Judiciary - Present System of Collegium
The Supreme Court of India in the case of Supreme Court Advocates –on Record Association v. Union of India (AIR 1994 SC 268), also known as Second Judges Case, introduced the collegium system of judicial selection within the higher judiciary wherein the judges are selected/nominated by a team of five or three senior most judges in Supreme Court and High Court respectively. This method of selection initially gained wide popularity as it kept executive influence to the minimal, contrary to the earlier practice.
However, experience over the years has proved otherwise. The noted jurist and author Fali S Nariman in his autobiography refers to the above mentioned case as ‘A case I Won: But which I would prefer to have lost’.
To quote him: “But the extra-curricular task (imposed upon five senior most judges by a judgment of the court itself), that of recommending appointments to the highest court, has not been conducted with the care and caution that it deserves. There is too much ad hocism, and no consistent and transparent process of selection. As a result, the image of the court has gravely suffered”.
Even worse, the higher judiciary have constantly maintained the position that such a system is to be secret as it is related with ‘independence of judiciary’ and has strived to keep the selection process beyond the purview of pro-transparency legislations like the Right to Information Act,2005.
Provisions of the Proposed Bill
Important Provisions of The Judicial Standards and Accountability Bill, 2010 can be listed as follows:
- Judges are mandatorily required to declare their assets and liabilities, and also that of their spouse and children.
- Bill establishes a three-tier system of National Judicial Oversight Committee, The Complaints Scrutiny Panel and an Investigation Committee to oversee the performance of judges.
- Initiative to provide a statutory back up for judicial standards which have been always subject to discretion of Judges.
- Any person can make a complaint against a judge to the oversight committee on grounds of ‘misbehavior’.
- A motion for removal of a judge for ‘misbehavior’ can be also moved in the parliament, which will be referred to the oversight committee.
- Complaints and inquiries against judges will be confidential and frivolous complaints will be penalised. Vexatious Complaints will be punished with an imprisonment of five years and also to a fine which may extend to five lakh rupees.
- The oversight committee may issue advisories or warnings to judges, and also recommend for their removal to the President.
The dilemma for policy makers have always been to make judiciary accountable without compromising on the ‘independence of judiciary’, considered to be a part of the basic structure of constitution. This legislation was an opportunity for the judiciary to restore its lost credibility. But it seems to be falling short of target.
From a broader perspective, the bill is trying to deal with subjective criteria’s like integrity and credibility of the judges appointed. It also seeks to establish a complicated procedure and a three-tier system for investigating complaints against judges, ensuring that such complaints are not vexatious and justice is ensured for the judges themselves. Inspite of all such measures, interestingly even the Parliamentary Standing Committee which studied the Bill, feels that it will be only a partial success, as the bill is only remedial and the real cure lies in infusing transparency into the selection process of judges.
To conclude, the focus ought to have been on the appointment process of judges and the least on such elaborate trial procedure. Many argue that a holistic legislation dealing with appointment, enquiry and impeachment would have been a far more welcome step. Hence, until substantial reforms are introduced into the opaque system of appointment of judges, we are trying to place the cart before the horse.