Competitive Exams: Current Affairs 2011: Judicial Standards

Judicial Standards and Accountability Bill

In recent times, the working of the judges of superior courts (High Courts and the Supreme Court) has come in for intense scrutiny and grave doubts have been cast against the conduct of some judges. The pressing call for greater institutional accountability in the Indian judiciary is now stronger than ever. It is in this light that Parliament's proposed Judicial Standards and Accountability Bill, 2010 must be seen.

This Bill seeks to devise a new complaint procedure under which any person may be able to file a complaint in writing against any judge of a superior court.

Upon such a complaint being filed and examined, the Judicial Oversight

Committee (proposed to be constituted under the statute), may either dismiss the complaint or make a reference to Parliament for the removal of the judge, issue advisories, warnings, withdraw judicial work or make a request for voluntary retirement.

The issue of Judicial Standards must be seen in the context of Art 124 (4) of the

Constitution which provides for the process of impeachment of a judge on the grounds of proved misbehaviour or incapacity. Art 124 (5) empowers Parliament only to make laws to regulate the procedure for presentation of address of impeachment, and for the investigation and proof for the misbehaviour or incapacity of a judge.

Article 124 (5) does not empower Parliament to create any other forum for recommending impeachment proceedings, or allow complaints to be made by any person, or to make a judge liable for minor penalties. What can be done only by a hundred or more members of the Lok Sabha or fifty or more members of the Rajya

Sabha (i.e.. Initiation of impeachment proceedings) can now theoretically be done by only one person.

Outlined below are some of the other major defects in the Bill:

Definition of misbehavior

By laying down a strict definition, the concept loses its elasticity and becomes both under-inclusive and over-inclusive. The Constitution framers had been careful not to define the term misbehavior, let alone define it exhaustively. Implicit in this understanding was the belief that if the power of removal was vested in high constitutional authorities, they would be in the best position to judge when misbehavior (or incapacity) had been occasioned.

Statutory provision for judicial standards:

The Bill also provides a list of standards of judicial conduct to which all judges are expected to adhere.

Investing the legislature with the power to lay down and amend the standards which all sitting judges must adhere to (or risk the proposed penalties), has the potential to severely threaten impartial and effective adjudication.

Constitution of Oversight Committee, scrutiny panel and investigation committee

Oversight Committee shall consist of five persons with two serving and one retired judge, an appointed eminent person and the Attorney-General of India. The presence of the Attorney-General on the Oversight Committee is highly suspect.

The Attorney-General has the responsibility of regularly appearing on behalf of the government before the court. On occasions, the possibility of his appearing before a judge against whom a complaint has been filed cannot be ruled out. In such a circumstance, there is clearly a conflict of interest since the Attorney-General will be a member of the Oversight Committee to look into the complaints made against the former.

The Scrutiny Panel is to consist of three members, two of whom will be judges sitting in the same court as the judge against whom the complaint is made. Since these judges would be colleagues sitting in the same court, it is likely that this will, either way, influence their conduct. It would be difficult for judges to dispassionately decide a case against one of their own and sitting with them day in and day out:

The composition and tenure of the Investigation Committee which is to be constituted for the purpose of enquiry into misbehaviour by a judge is undefined.

Theoretically, therefore, it is possible for a lay person without any knowledge, experience or standing to be a part of an inquiry panel against a sitting judge of a superior Court.

Minor punishments

The idea of minor punishments is unworkable and has the potential to seriously undermine judicial status. If sitting judges are issued advisories and warnings and thereby publicly censured, but still continue on the bench and decide cases, this damages the credibility of the entire system.

Atmosphere of secrecy

The Bill completely excludes the operation of the RTI. This establishes an atmosphere of total secrecy more regressive than the present system, and for which, there does not appear to be any rational reason to make a change.

Courtesy: The Hindu and Times of India