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A range of infirmities in two bills

Rajindar Sachar

The drawbacks in the bills on a National Judicial Committee for appointments and a National Judicial Council for disciplinary matters need to be removed.

THE TWO bills the Union Government has come out with, one for constituting a National Judicial Committee for appointments and the other for a National Judicial Council for disciplinary matters regarding the higher judiciary, are seriously flawed.

The first bill renames the collegium that chooses judges as judicial committee and also provides that the President shall make the appointments "from amongst a panel of names suggested by the committee." This is a deft move by the executive to have the last word, unlike the present situation where the judiciary has the final say. This permits the executive to play politics. If the committee of judges allows the Executive to make the choice, the judiciary's independence, a basic feature of the Constitution, will be undermined. Only one name for each vacancy should be sent by the committee.

The next inadequacy is that both the Judicial Council and the Judicial Committee consist exclusively of judges. This defeats the very rationale for these bills. The public at large has a legitimate stake in insisting that questions concerning judicial integrity cannot be the preserve of a small in-house group. It is, therefore, absolutely essential that the committee and the council include at least one layperson as member. He or she could be selected by the Prime Minister in concurrence with the leaders of the Opposition in both Houses of Parliament. A retired judge of the Supreme Court could be the full-time member because sitting judges may not have the time.

Suchlike provision exists in other Commonwealth countries. For example, New Zealand has a judicial conduct panel that consists of two judges and a layperson. In Canada, a judicial council was established in 1971. Australia has a Parliamentary (Judicial Misbehaviour or Incapacity) Commission consisting of three members, two of them appointed by the Senate and the Speaker of the House of Representatives on the recommendations of the Prime Minister, and one appointed jointly by the President of the Senate and the Speaker of the House on the recommendation of the Leader of the Opposition. At least one of the members has to be a judge or a retired judge of the Supreme Court. The fear that a layperson will interfere with the independence of the judiciary is misplaced. A large number of public men, academicians, and intellectuals inspire the same confidence as judges themselves.

The bill for constituting the National Judicial Council to look into various disciplinary measures against High Court and Supreme Court judges suffers from similar infirmities. Section 7 of the bill does not provide for the investigating agency to be appointed independently by the council. It repeats the deficiency pointed out by human rights activists for decades with regard to the powers of the National Human Rights Commission. Why should the appointment of the investigating agency require the government's consent?

There is a bar on filing complaints against judges who have retired, obviously aimed at discouraging frivolous complaints. But rather than a total ban, there could be a time limit. For example, alleged misdemeanours committed up to three months before the date of retirement could be investigated. For sitting judges, the previous two years could be the time limit.

Section 14, which says the enquiry shall be held in camera, is against all principles of fairness. A representative of the Bar must be allowed to watch the proceedings, because no agency is more concerned with the honour and impartiality of the Bench. An enquiry into a judge's conduct cannot be held in a sealed conclave. Judges' conduct should be an open book and they should not fear public scrutiny, though with all dignity and respect.

Another flaw is that Section 20 requires that the charges must be proved beyond reasonable doubt. This test of proof is misplaced when dealing with the integrity of the higher judiciary. The test should be of probabilities, like in a civil case.

In Australia, the question of proof is on the balance of probabilities. Surely, judges must not be demeaned by applying the test of a criminal complaint? The judge's chair is too sacred to be allowed to be occupied even if there is a slight whiff of suspicion regarding integrity.

The next serious drawback is that the bill provides that Supreme Court judges can be impeached by a simple majority of those present and voting in both Houses of Parliament, as against the present constitutional provision of a two-thirds majority. For High Court judges, this applies to the State Assemblies concerned. This means the threat of impeachment will hang over judges like the sword of Damocles.

Section 30 of the council bill 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 Parliament. This provision should be deleted to preserve the delicate balance between the judiciary and Parliament.

It is to be hoped that Parliament, while passing these bills, will simultaneously clear the Lok Pal bill, in cold storage for a decade and a half. That would send out the message that both the executive and legislature accept that the real sovereign in our democracy is: "we the people of India."

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