We need fearless judges….Fali S. Nariman
That is why the judicial Accountability Bill should be reconsidered
That is why the judicial Accountability Bill should be reconsidered
Change is not necessarily, and not always, the best remedy for something that has gone wrong. Let me explain.
At present, under constitutional provisions, read with the Judges Inquiry Act 1968, a judge of a high court or the Supreme Court cannot be removed except after following a tortuous procedure, deliberately so structured, only to ensure the independence of every judge of the higher judiciary: a motion has to be moved in either House of Parliament, signed by 100 members if moved in Lok Sabha, and 50 members if moved in Rajya Sabha; on it being admitted the speaker (of Lok Sabha) or chairman (of Rajya Sabha) must then appoint a committee of three persons (a Supreme Court justice, a high court chief justice and a jurist) to investigate the allegations in the motion and to make a report giving its recommendations. In the meanwhile, the motion is kept pending. When the report of the committee is received recommending that such judge be removed for proved misbehaviour, the political process gets into gear; the motion is then put to vote and if a two-thirds majority of members present in each House accepts the committees recommendation, then on an address presented to the president of India the judge stands removed upon an order made by the president.
This is all heavy-going, and for long many persons (myself included) were critical of the dilatory procedure involved and the difficulty of ensuring that a judge who lacked probity got his just deserts.
The Judicial Standards and Accountability Bill introduced by the law minister in November last year now offers an additional alternative: the procedure for the ultimate removal of a judge for misbehaviour can be initiated on the complaint of any person making an allegation of misbehaviour…; of course with the safeguard that the complaint must first go to a scrutiny committee (of judges) which can dismiss it if frivolous or vexatious; but if not, it goes to a National (Judicial) Oversight Committee which, after charges are framed against the judge, ultimately enables the oversight committee to give a warning to the judge to behave better or to recommend his removal. The bill is certainly well intentioned.
But in my view in India at this time and in conditions as they are at present of profound disbelief and suspicion about everyone and everything including judges of the higher judiciary to permit complaints by all and sundry against superior court judges is inadvisable: simply because good judges far outnumber the bad.
Besides, the word misbehaviour even though exhaustively defined is an elastic one. It encompasses gross and palpable acts of dishonesty; but it may even include persistent dereliction of duty: and much depends on the perceptions of those who sit in judgment.
A former distinguished law minister once told me that when he took a copy of the motion to remove V. Ramaswami (then a sitting judge of the Supreme Court) to his leader, Mr Vajpayee inquired what the judges misbehaviour was? When told that the principal charge against Ramaswami was that as chief justice of Punjab he spent public moneys imprudently and excessively on decorating the chief justices house at Chandigarh, and was also keeping for himself some pieces of furniture bought at the cost of government, Ataljis response was: Yeh to moorgi chor ke baat hai. And yet on this moorgi chor ki baat a committee of three very eminent and fair-minded judges ultimately found Ramaswami guilty and recommended that he be removed from his office as judge of the Supreme Court. The verdict was turned down only through the political process for want of a two-thirds majority in Parliament as required by the Constitution for the removal of a judge.
At one time I was of the view that we should follow the American system of judicial councils with judges sitting over the conduct of other judges on complaints made by all and sundry. But not now: with present-day media exposure (24×7) coupled with the burning desire of some unsuccessful disgruntled litigants to seek revenge (and some governments and some public corporations who lose cases are often the most disgruntled of all litigants) it is very easy for a tutored private TV channel to trump up a series of complaints of misbehaviour against a sitting judge howsoever fair and honest he (or she) be.
And in any case this bill is unnecessary, because with the aid of PIL it has not been difficult for a bench of judges to deal effectively with complaints under existing law and practice against some errant members of their own fraternity.
My own view is that it is far better and safer to catch the bad eggs in the judicial basket (and we must admit that there are quite a few) when they retire. What the law minister has to do is to have the Judges (Protection) Act 1985 repealed. This act has provided almost absolute immunity to sitting and retired judges. Honourable sitting judges in this country (and believe me, there are still many who deserve the prefix) do not need this additional protection. It is now used only as a shield for the few who belong to the integrity-extremely-doubtful class of erstwhile members of the higher judiciary.
And if a sitting judge does do something glaringly dishonest, then with prior permission of the CJI, a criminal prosecution can be launched as was done just a few days ago against a then sitting judge of a high court.
It may be true that the honest judges have nothing to fear. But the harassment caused to honest judges by the prospect of even frivolous or vexatious complaints is real. Judges of the higher judiciary take an oath when they enter upon their office to decide without fear or favour, affection or ill-will… This was greatly facilitated by the 1968 act which made it extremely difficult to remove them: it is now much easier to do so. But what worries me is that the bill is premised on the assumption that more judges of the higher judiciary are or may become dishonourable or dishonest: a questionable assumption, but even if true it is the wrong approach to law-making. Extreme care must be taken when appointing a person to the higher judiciary but, once appointed, its serving members must not be traumatised with the prospect of complaints by anyone and everyone. In the end this will only make judges more populist, and necessarily less fearless. And in these times we do need fearless judges.
The writer is an eminent jurist express@expressindia.com