The Central Government has come out with two Bills constituting a National Judicial Committee for appointments and judicial council for disciplinary matters regarding higher judiciary. In my opinion, both Bills are seriously flawed.
The proposed legislation changes the name of collegium to judicial committee. In order to snatch supremacy by the executive it is provided that the President shall appoint “from amongst a panel of names suggested by the committee”. A deft move by the executive to have the last word, unlike the present where it is with the judiciary. This permits the executive to play politics. No self respecting committee can allow final choice to be made by the Executive thus undermining the independence of judiciary, a basic feature. Only one name for each vacancy should be sent by committee.
The next inadequacy is that both Judicial Council and committee consists exclusively of judges. This defeats the very rationale of the necessity for bringing forth these Bills. I am of the firm view that the public at large has a legitimate stake in the judiciary and has a strong justification to insist that the question concerning the integrity of judiciary, cannot be the preserve of the small in house judiciary, itself. It is therefore, absolutely essential that the committee and the council must include at least one lay person as a member – he could be selected by the Prime Minister in concurrence with leaders of the opposition in both Houses of the Parliament. A retired judge of the Supreme Court could be a full-time member because sitting judges may not have sufficient time.
Such like provision exists in other Commonwealth countries also. New Zealand has a judicial conduct panel act. This panel consists of two judges and a lay person.
In Canada, the judicial Council was established in 1971.
Similar is the position in Australia which has a Parliamentary (Judicial Misbehaviour or Incapacity Commission) Bill 2005. The Commission consists of 3 members, 2 of them to be appointed by the Senate and the Speaker of the House of Representatives on the recommendations of the Prime Minister and one to be appointed jointly by the President of the Senate, Speaker of the House on recommendation of the Leader of the Opposition and at least one of the members is to be a judge or a retired judge of the Supreme Count. The fear that presence of a lay person will interfere with the independence of the judiciary is misplaced as Judicial Commission of New South Wales (Ireland) Annual Report said – “ In conferring a complaints function upon the Commission the Parliament struck a balance between independence and accountability. Judicial independence is not some kind of industrial benefit generously extended to judges and magistrates; it is fundamental principle of our society’s constitutional arrangements”. To assume that lay persons would not be easily available is to insult the public standing of large number of public men, academicians and intellectuals, who inspire the same confidence as the judges themselves.
The other Bill constituting National Judicial Council to look into various disciplinary measures into the judges of High Court and the Supreme Court suffers from the same infirmly.
Section 7 of the Bill is flawed because it does not provide for investigation agency to be appointed independently by the council. It repeats the deficiency pointed by human right activists for decades with regard to the powers of National Human Rights Commission. I see no reason why investigation agency to be appointed should require the government’s consent.
There is a bar to filing a complaint against a judge who has retired. I appreciate that there may little more tendency to file frivolous complaint against a retired judge. But then I do feel that there should not be a total embargo – may be the misbehavior alleged should have taken place 3 months from the date of retirement, as against 2 years of a sitting judge.
Section 14, which says that the enquiry shall be held in camera – this is against all principles of fairness. Personally, I feel that once the council has not found the charges to be frivolous, then broader consideration and the opt repeated maxim of Bench and Bar being the two wheels of a chariot, representative of Bar must be allowed to watch the proceedings, because there is no agency more concerned with the honour and impartiality of the Bench. An enquiry into a judge’s conduct cannot be held in like a sealed conclave of Papal Council – judges conduct is an open book and should not fear being exposed to sunlight of public scrutiny, though with all dignity and respect. And there is precedence for this Course. In New Zealand the enquiry is in public.
Another flaw is that Section 20 requires that the charges must be proved beyond reasonable doubt. I feel that this test of proof is misplaced when dealing with test of integrity of such institution like that of higher judiciary. I feel the test should be of probabilities like in a civil case. In Australia, Section 27 of Act provides that the question of proof is on the balance of probabilities. Surely, judges must not be demeaned by applying the test of a criminal complaint; judges chair is too sacred to be allowed to be occupied even if there is a slight whiff of suspicion regarding judges’ integrity.
Next serious drawback is that majority of 2/3 present and voting for removal is being dispensed with by substituting a simple majority voting. This will give a serious handle to the government party to hold this menace of impeachment and is, therefore, unacceptable.
Section 30 provides for an appeal to the Supreme Court against an order of removal by the President which follows after each House has held that misbehaviour has been proved. Nowhere in the world is there an appeal against the verdict of the Parliament. Such a provision, even on charitable consideration shows a gross ignorance of the mechanism of delicate relationship of Parliament and the courts. The provision should be deleted.
It is to be hoped that Parliament while passing this legislation, will also at the same time pass Lok Pal Bill which is lying in hibernation in for a decade and a half. Passing of these both legislatures at the same time will be a fitting recognition that both the executive and legislature accept with deep reverence the real sovereign in a democracy as mentioned in preamble to the Constitution i.e. “we the people of India”.
(Rajindar Sachar)
Dated : 07/03/2007
New Delhi.