The Federal Cabinet approved in principle to introduce a Judges (Inquiry) Bill 2006 aimed at making High Court (HC) and Supreme Court (SC) judges accountable for actions inconsistent with their position including corruption charges and incapacitation. This bill will replace the Judges (Inquiry) Bill, 1968 which allows any Indian citizen to complain against a judge and does not require a sponsorship from a Member of Parliament (MP).
The political parties have been asking for such a law for a while to gain control over the judiciary who are above normal control of the administration. So far, there has been no consensus on what this law would look like because there is genuine fear that it may be abused by corrupt politicians in power to avenge uncomfortable judges. At the same time, there was also a perceived requirement that such a law was necessary because there was no checks and balances to deal with judicial corruption and inconsistencies.
The proposed legislation derives from the recommendations of the Law Commission’s 195th report to lays down a transparent process to investigate and prove charges of deviant behavior and to deal with incapacitation of judges. The Commission is constitutionally authorized to update and revise the Code of Conduct and recommend guidelines. Currently, judges are required to disclose assets and liabilities to the Chief Justice of India (CJI) or High Court Chief Justices.
An important component of this legislation is the creation of a National Judicial Council (NJC) chaired by the CJI and populated by 2 senior SC judges and 2 from the HC level to review complaints against judges. It also stipulates a process by which SC judges and even the CJI may be investigated by this council. Complaints are to be scrutinized and verified by the council before accepting it. While the NJC can impose many “minor” actions such as seeking early retirement, issuing advisories, stopping assignment of work while investigation is in progress, issue warnings, censures, or admonitions, it cannot impeach a judge. That right will remain with the Parliament and the President.
Accepting that no individual should be beyond investigation or scrutiny and above the law, there are many problems with this legislation. Firstly, it is not clear how frivolous or vexatious complaints are dealt with or what status a charge-sheeted judge may assume. Secondly, with investigation being as shoddy as it is in India , it is also unclear who long a judge may be under charge and how his judgments are to be treated which being investigated. Thirdly, since police, investigative agencies, and federal investigative mechanisms are under the political class, it is unclear how this law will protect vengeful complaints or politically-inspired complaints will be filtered. Fourthly, with the number of cases being piled up at all levels of the judiciary, it is unclear how the new NJC plans to deal with the volume of complaints. Fifthly, with the number of issues raising confrontations between the Judiciary and the Legislature such as the Reservation issue, parallel Islamic courts, privilege information to be used as evidence, politically-inspired vilification of inconvenient Parliamentarians, etc. the move by politicians to grant themselves excessive control over the judiciary is suspect. Sixthly, the undue emphasis on judicial accountability and Code of Conduct for judiciary while not bringing any norms for politicians seems inconsistent—if such measures be applied to the Parliament, several would be barred for embezzlement, murder, arson, rape, and extortion.
These are issues that responsible and honest politicians must ensure are covered by the new bill when it is brought up for debate in the winter session.