Democracy requires a graded system of accountability for its judiciary that is not limited to impeachment. There are a number of other aspects to the whole debate on the accountability of the judiciary, which we must be mindful of while considering the merits of such legislation points out YASH AGRAWAL.

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It was in late 1979 when Justice P.N. Bhagwati, in Hussainara Khatoon Vs State of Bihar case, set off the phenomenon that Public Interest Litigations (PILs) evolved to become what it is today. Brought about by a substantial relaxation in the traditional interpretation of the term “locus standii”, the Supreme Court formally defined the term in SP Gupta vs Union of India.

With the advent of PILs, and alongside other long-gestating changes in litigation, the judiciary in India is no more an institution dealing solely with matters of law and constitution. This evolution, over the past few decades, has had other implications as well, particularly related to judicial accountability and institutional functioning.

Why the need for graded accountability?

The Indian Judiciary is often referred to as the most powerful court in the world for a reason. It is a public actor, much more than it used to be earlier.

Today, courts in India have intervened in a wide-ranging pool of policy and political subjects.

This has birthed a considerably larger number of avenues of possible conflicts of interest. It has also propelled a greater need for a form of accountability that answers for these evolving trends in jurisprudence as well.

With the significantly evolved profile of the judiciary and the matters it intervenes in, the methods of its accountability need to evolve as well. 

There is absolutely no doubt that judicial independence is paramount and in no way should any statute infringe upon it.  In fact, a number of constitutional provisions currently ensure such independence. Aspects such as remuneration, pension, terms of appointment, tenure etc. are all secured for all judges across all levels of the judiciary.

However, when it comes to having options for enforcement of accountability, we have only extreme ones such as impeachment. As history tells us, that too isn’t practically feasible, rendering it ineffective.

With the significantly evolved profile of the judiciary and the matters it intervenes in, the methods of its accountability need to evolve as well.

There is no reason why the judiciary in India shouldn’t be subjected to a more practical and graded system of accountability like most other democracies have already.

There’s a very relevant background to impeachment that is worth mentioning here.

Justice Veeraswami Ramaswami, then Chief Justice of the Punjab and Haryana High Court was the first judge in post-independence India against whom impeachment proceedings were initiated in Parliament. The three-member committee constituted to consider the charges found him prima facie guilty of irregularities.

Most mature democracies, like the UK and the US, have acknowledged that while not every misconduct is of the gravity to mandate impeachment, some form of penalty is necessary. 

On the day of the vote in the Parliament, all ruling party MPs abstained from voting on instructions of the then PM. This meant that even though every single other MP voted to impeach him and no one voted in his favour, the judge survived in office as the impeachment rules require of 2/3rd members of the house to be present and voting. On the grounds of such a technicality, the impeachment proceedings were defeated.

There have been other such instances as well.

The then Chief Justice of the Sikkim High Court Justice P.D. Dinakaran resigned before the trial impeachment motion could progress against him. Justice Soumitra Sen of the Calcutta High Court, the first judge in India’s history to be impeached by the Rajya Sabha, was found guilty of misappropriation of public funds. But he resigned before the impeachment motion against him could even be taken up any further.

The impeachment process has never gone on to its logical conclusion despite ample evidence of wrongdoing and illegality. In fact, many have suggested amending the constitution to ensure that, in such cases, the post-retirement perks are withheld from a judge if proven guilty of misconduct.

The failures of the accountability mechanism, as it currently exists, is clearly evident.

This isn’t a conundrum for India alone.

Other democracies have had to make these choices as well in a bid to balance judicial independence with a mechanism of institutional accountability.

Most mature democracies, like the UK and the US, have acknowledged that while not every misconduct is of the gravity to mandate impeachment, some form of penalty is necessary.

These can range from debarring of the judge concerned from hearing certain cases to taking away judicial work from them.

Both US and UK have in the last few decades, passed laws enshrining judicial accountability into law. It is interesting how, in Chandler vs Judicial Council in the USA, Judge Harlan had stated how judicial self-regulation was a part of the “administration of justice” itself, with the objective of improving its efficiency.

What did the Judicial Standards and Accountability bill prescribe? Why did it fail?

The Judicial Standards and Accountability Bill, 2010  (JSA Bill) was a legislative attempt at laying down certain judicial standards, introducing accountability mechanisms and establishing less cumbersome processes for the removal of judges of courts across India. It was introduced in the Lok Sabha in December 2010 by then Law (and Justice) Minister Salman Khurshid.

The Bill had provisions to enforce certain standards of conduct on judges. Complaints and motions against judges could be made for non-compliance with these standards as prescribed. 

This is what he had to say in regards to the proposed law: “The passage of this bill shall be a major achievement in establishing systems and procedures which will be far superior and practicable to that provided for in the Judges Enquiry Act. The executive endorses the recommendations made by the Collegium both at the level of the High Courts as well as the Supreme Court. This system which deprives the executive of having meaningful participation and sharing information in its possession needs to be reformed.”

Some of the core provisions of the JSA Bill were as follows:

• The Bill had provisions to enforce certain standards of conduct on judges. Complaints and motions against judges could be made for non-compliance with these standards as prescribed. For example, it prohibited hearing or deciding cases in which a relative or friend of the judge is concerned, engaging in trade and speculation in securities, entering into public debates on matters of politics or other matters which the judge concerned is likely to hear or decide and so on.

• Judges were to be required to declare all their assets and liabilities, including those of their spouse and dependents, within 30 days of taking an oath to enter office. Moreover, every judge was to file an annual report of his assets and liabilities. The assets and liabilities of the judge concerned were to be displayed on the webpage of the court to which he or she belongs, in the interests of transparency.

• At present, only a Member of Parliament can bring complaints of impropriety or misconduct against a judge through a motion presented in the Parliament and the bill sought to allow any person, apart from MPs, to bring any such complaint to a proposed Oversight Committee.

• The Bill established the National Judicial Oversight Committee, a Complaints Scrutiny Panel as well as an investigation committee.  A motion for the removal of a judge on the grounds of impropriety or misconduct could also be moved in Parliament, and it would’ve been referred for further action to the Oversight Committee itself. All such complaints and inquiries against judges were to be kept confidential and frivolous complaints were to be in fact, penalised.

From making Vishakha guidelines applicable to the institution to bringing it- including the office of CJI- under the ambit of RTI to developing graded accountability mechanisms whilst fully preserving the institution’s independence – the task remains onerous and yet equally important.

The Oversight Committee was also empowered to issue advisories or warnings to judges alongside recommending their removal to the President as well as the case may have been.

The JSA Bill was passed by the Lok Sabha in March 2012, after it had been put through a Standing Committee scrutiny. It, however, could not be taken up for discussion in the Rajya Sabha as Parliament was adjourned. Such legislation has not been brought up, at least formally, ever since.

There are a number of other aspects to the whole debate on the accountability of the judiciary, which we must be mindful of while considering the merits of such legislation.

From making Vishakha guidelines applicable to the institution to bringing it- including the office of CJI- under the ambit of RTI to developing graded accountability mechanisms whilst fully preserving the institution’s independence – the task remains onerous and yet equally important.

It is time we gave it a serious thought.

(Yash Agarwal is a consultant and is the co-founder of publicpolicyindia.com .  The views are personal.)