A TOAST TO JUDGES
(INQUIRY) AMENDMENT BILL, 2006
       HOLDING JUDGES ACCOUNTABLE        

Shabbeer Ahmed*

More often than not, it is complained that the judiciary which is one of the most important Montesqiuieu organs is being break away from the basic tenet of the democracy called accountability. If the Democracy boasts of such basic tenets, then it should be reflected through its laws. Such a law is Judges (Inquiry) Amendment Bill, 2006 (if becomes Act) which ensures accountability of judges and has been approved by the cabinet finally on 9th November, 2006. The Bill provides for setting up a National Judicial Council (NJC) to probe any misconduct by a judge of the Supreme Court or High Courts. Under the existing Judges (Inquiry) Act, 1968, any misbehaviour and incapacity of a member of the higher judiciary can begin only if a motion to this effect is passed in either House of Parliament. Moreover, the only action possible against a Supreme Court and High Court judge is impeachment which is a time-consuming and cumbersome procedure that requires the support of a two-third majority in both Houses. It is pertinent to note at this juncture that the only judge found responsible for misbehaviour under the Act, Justice Ramaswamy, could not be removed from the Supreme Court as the motion was not carried in the Lok Sabha. In contrast to this, the proposed law, which entails certain amendments to the existing law, provides for a procedure under which any person can make a complaint to the NJC against judges except the Chief Justice of India (CJI). The NJC will comprise the CJI, two Senior-most judges of the top court and two senior-most Chief Justices of the High Courts nominated by the CJI. If a judge is found guilty, he will be asked to put in his papers, failing which he will be removed. It further provides that a judge, against whom prima facie evidence of an illegal act is found, would be asked not to attend courts pending an inquiry.

The minor measures enumerated in the Bill include, issuing advisories, request for retirement, and stoppage of assignment of judicial work for a limited time, warning, censure or admonition (public or private). The Law Commission after a comprehensive study of the Bill, suggested in its 195th report a number of changes, including the inclusion of a whistleblower provision aimed at protecting those making complaints against judges. A different suggestion canvassed in some quarters, for a judicial council with a broader composition, that is, one that includes members from outside the judiciary as well, would have impaired judicial independence and run a foul of the doctrine of separation of powers. The mechanism proposed in the Bill is in line with the Supreme Court’s view that “in-house peer review” is the proper mechanism to impose punishments on judges. What is envisaged is a fairly comprehensive structure to discipline errant judges and how well it works depends on the judges themselves. A bitter fact is that if you lose faith in politicians, you can change them, but if you lose faith in judges, you still have to live with them and obey them. The proposed law is definitely a welcoming code which challenges the dirt embedded in the lower and upper judiciary in many forms in the recent past. Although misconduct including corruption exists in all societies, it has a particularly pernicious effect in developing and less developed countries and hence these type of laws act as a check on the corrupt judiciary because it is the poor and innocent who always bear the greatest burden of a corrupt society. After all, a commercial recession can be quickly transferred into a buoyant economy, but a moral recession cannot be shaken off for years.