The back and forth between law minister Kapil Sibal and Chief Justice of India (CJI) P Sathasivam regarding accountability within the judiciary illustrates the manner in which the issue has become something of a football between the political fraternity and the judiciary since the tabling of the Judicial Standards and Accountability Bill, 2010 four years ago. But the week has also seen progress on this front with the Union cabinet clearing a crucial amendment to the successor Judicial Standards and Accountability Bill, 2012. The provision in question, charging judges “not to make unwarranted comments and observations against Constitutional or Statutory Authorities or any person in the course of judicial determination” was an unnecessary constraint born of the frequent tussles between the judiciary and the executive over the rash of scam cases in the past few years. But while one hurdle is down, others remain.
In its final form, the Bill will have to maintain the delicate balance between the opposing objectives of bringing about transparency and accountability within the judiciary and maintaining its independence. Publicly, the judiciary has been circumspect, but there has been a pervasive sentiment of animus against the Bill for leaning too far in the former direction at the cost of the latter. It has no one save itself to blame for this. Its obstruction of previous measures to bring about some measure of transparency — Supreme Court judges’ reluctance to publicly declare their assets in 2009 comes to mind — has created space for the executive and the legislature to impose external constraints.
And there is a need for such constraints. Contrary to what Sathasivam has said, the system to hold members of the judiciary to account for wrongdoing, regulated by the Judges Inquiry Act (1968), is broken. Currently, a minimum of 100 members of the Lok Sabha or 50 of the Rajya Sabha have to move a motion for impeachment of a judge. Following this, an inquiry committee comprising the CJI or another SC judge, a High Court Chief Justice and an eminent jurist looks into the matter and submits a report. The motion must then be passed by both houses with two-thirds of the members present and an absolute majority. Justices like Soumitra Sen and P Dinakaran have short-circuited this process in the past by resigning during the process of impeachment, therefore escaping all consequences; this when the inquiry found the former guilty. SC judge V Ramaswamy, on the other hand, escaped the impeachment motion in 1993 when Congress MPs simply stayed away.
The executive and legislature’s attempt to bring about accountability is far from disinterested, of course. Judicial activism necessitated by a governance gap, measures such as barring tainted MLAs and MPs from retaining their memberships and pungent criticism of government policy have all done little to endear the judiciary to the political fraternity. Keeping that in mind, the Bill could do with some more tinkering. The model the UK has used for its Judicial Appointment Commission — a completely independent body with no government members — is worth looking at given that the presence of the Attorney General of India on the Oversight Committee as currently envisaged could lead to conflicts of interest. There is more fine-tuning to be done before the correct balance is found.