Soon, a bill to make judges accountable

A bill allowing members of the public to record complaints against judges of the Supreme Court of India and the high courts (the superior judiciary) is due for consideration in the current budget session of Parliament.

The bill, called the Judicial Standards and Accountability Bill, 2010, seeks to put in place a mechanism for investigation into allegations of misbehaviour against judges of the superior judiciary and to hand down minor penalties such as “advisories or warnings”. The current legal position is that the only action that can be taken against a judge of the superior judiciary is removal from office. Even this step can only be initiated by Members of Parliament (MP) and not common citizens.

Under the Judges Inquiry Act, 1968, it needs 100 MPs of the Lok Sabha or 50 MPs of the Rajya Sabha to initiate the process of removal of a judge. The importance of the present bill is that it has done away with the need for MPs to begin the process of punishing a judge for misbehaviour and has put that power in the hands of all citizens.

Apart from providing for minor penalties, the bill sets out a procedure for removal of the judge concerned if the allegations against him or her are proved. It also makes provision for prosecution of a judge in accordance with provisions of the law.

An aggrieved citizen can make a complaint against a judge of the superior judiciary to an oversight committee, to be set up under the bill. It will consist of a retired chief justice of India appointed by the president, a sitting judge of the Supreme Court, a chief justice of a high court, the attorney general of India, and an eminent citizen to be nominated by the president.

The oversight committee will forward the complaint to a scrutiny panel to ascertain whether it has any substance or not. The oversight committee has been given the power to appoint investigation committees to look into specific allegations made against a judge. It is important that the investigation process remain under the control of the oversight committee so as to prevent misuse of the information secured.

Another salient feature of the bill is that it provides for declaration of assets by judges every year on the official website of the court to which they are attached, along with connected documents or information. Presently, judges of the Supreme Court and judges of some high courts voluntarily declare their assets. Under the present bill, such declarations will be mandatory.

For the first time, the proposed legislation lays down standards that judges of the superior judiciary should follow, such as not contesting elections of clubs or societies. They have been restrained from developing close associations with advocates, particularly those who practice before them. No judge is permitted to allow any advocate member of his family to use the judge’s residence for professional work. A judge cannot hear and decide a matter involving any member of his family, relatives or friends.

He also cannot accept gifts or hospitality from anyone except his relatives. Judges are expected to function with integrity and detachment and to further the impartial administration of justice.

The only possible criticism against the bill is that it provides for secrecy in the process of inquiry into a complaint. Every complainant has to give an undertaking not to disclose to anyone, including the media, the name of the judge, the contents of the complaint, or any documents or proceedings relied upon.

The Right to Information Act, 2005, will also not apply to such proceedings. However, the findings of the investigation committee and orders passed by the oversight committee will be made public.

The bill makes a positive contribution in the direction of independence and accountability of judges of the superior judiciary. The bill provides for a jail term and a fine against persons who file frivolous or vexatious complaints or who attempt to scandalise or intimidate a judge. Such a provision is necessary because it is important to keep in mind that judges, unlike other public functionaries, do not enter into public debate and therefore need special protection.

Our country is many years behind countries such as the United States, United Kingdom, Canada, Australia and New Zealand in bringing forth such legislation. In these countries it is accepted that judges are as accountable to the people as other public functionaries. Our judges have to get used to this concept.