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Judged by higher standards

Rajindar Sachar

With our tradition of judicial independence, a National Judicial Commission could be a turning point in the working of the judiciary.

JUDGES DO not come from another planet — they come from the same stock as the rest of society, and the actions of some of them do bring shame upon us. No protection is sought for them. The Supreme Court itself has emphasised that society's demand for honesty in a judge is exacting and absolute. No excuse or no legal relativity can condone such betrayal. A single dishonest judge not only dishonours himself and disgraces his office, but also jeopardises the integrity of the entire judicial system.

It is therefore a matter of satisfaction that the United Progressive Alliance Government has proposed to legislate a National Judicial Council Bill and, specifically, provisions have been made for declarations of assets by judges. The Supreme Court had decided on this practice years ago but it was, unfortunately, not being followed. This Bill fills an important gap and certainly cannot be objected to. One hopes Parliament, at the same time, will pass the Lok Pal Bill. It has been in hibernation for three decades, although the Prime Minister had declared it as his priority soon after taking office.

The judiciary, in spite of its obvious drawbacks, continues to enjoy the confidence of the public. That is a good sign, because a democracy cannot function properly if there is a lack of judicial objectivity and fairness. Many kudos are given to the judiciary and most of them are well deserved. But I, in all humility, do feel that a little more introspection is required amongst the judiciary so that it can play its significant constitutional role in our democracy.

It was for that reason that it had been felt in legal and political circles that in disciplinary matters concerning the higher judiciary, the present position of the Supreme Court alone being the exclusive mechanism, is no longer satisfactory and that there was a need for a judicial commission to deal with matters in a more transparent manner.

As a matter of fact the Law Commission, in its 121st report, had suggested that the present closed system of appointing judges can be replaced with a National Judicial Commission (NJC). I am of the view that the public at large has a legitimate stake in the judiciary and has a strong justification to insist that such an important function concerning the whole society cannot be the preserve of the small freemasonry of the judiciary.

Legal mechanism

So far, the absence of any legal mechanism has hindered action against erring members of the higher judiciary. There has been some in-house mechanism adopted by the Supreme Court. But that can only operate on the acceptance of the decision by the erring judge. A former Chief Justice of the Bombay High Court and a judge of the Rajasthan High Court resigned once they were told that the matter would be sent for impeachment. But we have also had the case of Justice Ramaswamy, who absolutely insisted on sitting in court notwithstanding the decision of the Chief Justice not to allot any work to him during the inquiry against him.

I have, however, certain reservations about the composition of the NJC. I feel that, in addition to the Chief Justice and the three senior-most judges of the Supreme Court, there should also be the senior-most Chief Justice of a High Court, so as to broaden the commission's scope. In my view, the NJC must also include one layperson, to be selected by the Prime Minister in concurrence with leaders of the Opposition in both Houses of Parliament. A retired judge of the Supreme Court could be a full-time member because sitting judges may not have sufficient time.

It is necessary to breach the seal of exclusivity of the robed brethren and provide a whiff of fresh air. Indeed, information about prospective appointees may more easily be gathered by lay members of the NJC, because they are in closer touch with wider society than sitting judges who need to maintain judicial aloofness.

In Canada, the Judicial Council was established in 1971. About 66 per cent of the complaints are concluded within three months, and over 94 per cent within six months. New Zealand has a Judicial Conduct Panel Act. This panel consists of two judges and a lay person. The hearings are conducted in public.

In Australia, such a commission was set up in 1987 and 840 complaints have been examined so far. In five serious complaints, the judicial officer involved resigned, either before the conduct division commenced the inquiry process or before it had concluded its deliberations.

The NJC could adopt the already existing mechanism under the Judges Inquiry Act. If a judge, after being found guilty of serious misconduct, does not offer to resign, the NJC could straightaway refer the matter to Parliament, which shall then take a vote for his removal, which it will have to justify to the public. I feel that the procedure for removal should be by impeachment, through Parliament — that much is due to the higher judiciary.

Fears have been expressed that accusations of misconduct — before they have been established as credible — would affect the independence of the judiciary. In this connection, the views of the president of the Australian commission, in his foreword to the Judicial Commission's 1997 Annual Report, are worth repeating: "Since the final object of the system, as illustrated by the ultimate sanction, is to procure the departure of persons unfit for judicial office, in such a case the scheme of the Act has not been frustrated; it has been fulfilled."

There is no reason, or logic, in the comments of those who oppose the NJC, who say it will not have the same beneficial effect here, as it has had in other countries. Rather the reverse. With our tradition of judicial independence, I firmly believe that the constitution of the National Judicial Commission will be a turning point in the working of the judiciary.

(The writer is a former Chief Justice of the Delhi High Court.)

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