In Parliament: Judging the Judges
The current winter session of Parliament may witness a rare event—the impeachment of a sitting judge of a High Court. To date, there has been only one motion for removal of a judge, that of Justice V Ramaswami of the Supreme Court, and the motion failed to carry adequate support. The current case is that of Justice Soumitra Sen of the Calcutta High Court. Another motion—against Chief Justice Dinakaran of Karnataka High Court (now chief justice of Sikkim High Court) is also pending inquiry.
The process for removal of a supreme court or high court judge starts with a motion moved by at least 100 members of Lok Sabha or 50 members of Rajya Sabha. The presiding officer then appoints a three member inquiry committee—a Supreme Court judge, a chief justice of a High Court, and an eminent jurist. If the inquiry committee finds that there is sufficient proof of misbehaviour or incapacity, each House of Parliament may take up the motion. The motion has to be passed by a two-thirds majority in each House (with at least a simple majority of the total strength). Then the President may issue an order for removal. Interestingly, in the Justice Ramaswami case, the Supreme Court held that the judge has the right to appeal to the Supreme Court after the removal order.
There have been moves to change the process. A Bill was introduced in Parliament in 2006—which lapsed in 2009—that sought to establish a National Judicial Commission, which could comprise the Chief Justice of India, the two senior-most judges of the Supreme Court, and two Chief Justices of High Courts. It provided for a complaint mechanism, through which any person could file a complaint against a judge. That Bill also provided for minor measures such as issuing advisories and warning, asking the judge to resign, and public or private censure.
There are four major conceptual issues related to removal of judges. First, who should judge whether there was an incident of misbehaviour or incapacity. Second, who may start the process of removal. Third, whether minor measures should be imposed. Fourth, should there be provision for an appeal after removal.
There are differing opinions on the process for holding judges accountable. In 1993, the Supreme Court held that the President has to appoint judges based on consultation with the judiciary. In the Justice Ramaswami case, it ruled that judicial conduct should be investigated by a body predominantly composed of the judiciary. In 1997, two resolutions were passed establishing in-house procedures for examining complaints, and adopting a code of values. Again, in 1998, the Supreme Court held that only judges would determine judicial appointments.
The Law Commission (195th report which examined a draft of the Judges Inquiry Bill) stated that oversight of judges should be with a committee composed solely of the serving judiciary. It gave examples of several countries including the United States, the United Kingdom, Canada, Germany and Australia where judicial oversight is controlled by the judiciary.
An expert paper written for the National Advisory Committee differed from this view. This paper suggested a National Judicial Commission composed of members from the legislature, the executive and the judiciary. The recommendations of this Commission would be binding on the President. The paper suggested that the Constitution be amended to incorporate these changes.
The Parliamentary Standing Committee on Law examined the Judges Inquiry Bill, 2006. It said that the “proposed judicially exclusive composition of the National Judicial Council is not in consonance with the principle of accountability”. It suggested that the NJC be expanded to include members representing the legislature and the executive. Alternately, an Empowered Committee be set up to screen complaints before they are investigated by the NJC. The Empowered Committee would have representatives of the executive, the legislature and the legal profession.
The Judges Inquiry Bill, 2006 had provided for a mechanism by which any person may make a complaint against a judge. There were penalties for frivolous or vexatious complaints. There would be a preliminary investigation followed by an inquiry by the National Judicial Commission (NJC). If the NJC finds that the charges are proved and the judge should be removed from office, it is to make a recommendation to the President. Following this, a motion for removal may be moved in either House of Parliament.
The Standing Committee felt that such a system would subject judges to both genuine and frivolous complaints. It contrasted this with the motion in parliament which requires 100 Lok Sabha MPs or 50 Rajya Sabha MPs. The Committee suggested an Empowered Committee should first screen all such complaints.
The 2006 Bill had provided for “minor measures”, short of removal of the judge. These included censuring the judge, private or public admonishment, removal of work, and asking the judge to voluntarily retire. The Law Commission stated that the NJC should be enabled to take minor measures if the offence did not warrant removal, and pointed out to similar cases in the United States and Canada. The Standing Committee however said that the constitutional validity of this provision should be examined.
The issue here is that of the moral high ground that judges are expected to hold, and whether that comes under doubt if a judge faces these measures. Indeed, in a recent speech Justice A P Shah, former chief justice of the Delhi High Court, said that minor punishment would undermine the status of a judge and the credibility of the entire judicial system.
Appeal after removal
In 1992, the Supreme Court ruled that the Inquiry Committee was only an investigative body, and the question of judicial review would arise only after an impeachment process was passed by Parliament. At that time, the judge could appeal to the Supreme Court on judicial grounds. The Standing Committee that examined the 2006 Bill differed from this view. It stated that the Constitution provided for the process of removal and any appeal against that would amount to a challenge to the constitutional authority of the President.
The legitimacy of the judiciary stems from the trust it engenders among the public. That requires both independence and accountability. Balancing the two objectives is a delicate task. In the last two decades, the judiciary has moved towards greater independence, especially with respect to appointment of judges. However, some judges recognise the need for accountability as witnessed by the Delhi High Court’s recent judgement that the Supreme Court is covered by the Right to Information Act. The Cabinet has approved the Judges Accountability and Standards Bill but the government has not placed it in the public domain. We hope that the Bill provides for a smooth mechanism that balances the twin objectives of judicial independence and judicial accountability.
M R Madhavan heads research for PRS Legislative Research, New Delhi