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Issue 9 Vol I, February 15, 2006law and justice Will
Judicial Council Discipline Errant Judges?
The Law Commission has recommended the constitution of a National Judicial Council, in place of a National Judicial Commission as earlier suggested, part of manifesto of all the political parties, to consist of Chief Justice of India as its head, two senior most Judges of the Supreme Court, two senior Chief Justices of the two High Courts to go into the complaints against Judges of the High Court and the Supreme Court. It departs from the Judges Enquiry Bill, which was never tabled in Parliament. It had conceived of a pre-impeachment enquiry to be preceded before an impeachment proceeding in the Parliament. The N.J.C. now recommended, does not involve Parliament or the Speaker of the Lok Sabha or the Chairman of Rajya Sabha or the leader of opposition or even the Prime Minister as was conceived for a National Judicial Commission, rather a straightway enquiry by a Judicial Council only. This takes us back to origin of the controversy under the Govt. of India Act, 1919 High Court Judges held office during the crown's pleasure. The Govt. of India Act, 1935 provided that the High Court judges may be removed on the ground of misbehaviour or infirmity of mind or body, by the Privy Council on reference being made by the Governor General that he ought to be removed. The Sapru Committee agreed in its report in 1945 and excluded the legislature from all participation in such proceedings. It recommended a reference to the Supreme Court by the Head of the State and in the case of a Supreme Court Judge to a Special Tribunal. The Constituent Assembly in 1946 had the paramount task of drafting the constitution before independence for a free India. The drafting of the chapter for judiciary started in May 1947. Soon thereafter India witnessed riots. The Constituent Assembly in such a situation felt the need of an independent judiciary, which could, in such a situation ever happening, could safe-guard the life and liberty of its citizens.
This procedure had its test in the case of Justice V.Ramaswamy of the Supreme Court who faced charges of misconduct while working as Chief Justice of the Punjab and Haryana High Court on a motion moved by Madhu Dandvate and 107 other Members of Parliament. Speaker Rabi Rai admitted the motion and appointed a Committee comprising Justice P.B.Sawant Judge of the Supreme Court; Justice P.D.Desai Chief Justice of High Court of Bombay, Justice Chinappa Reddy former Judge of the Supreme Court who found the errant Judge guilty of charges. 160 members of the political party in power abstained from voting, the motion could not muster the support of two-third majority of the Members of Parliament, present and voting. Although the charges were proved, yet the impeachment failed. This gave rise to a debate regarding the viability of a procedure provided in the Judges (Inquiry) Act regarding the impeachment, firstly to have the signatures of hundred M.Ps for presenting a motion and then to have the support of two-third members of the House, present and voting and majority of the total membership of the House. The proposal for the constitution of a National Judicial Commission regarding which a provided Bill was drafted and circulated, all the political parties accepted in principle and made it a part of the Manifesto that a National Judicial Commission be constituted. The matter on reference to the Law Commission has now emerged with the recommendation that the National Judicial Council, be constituted comprising of three senior Judges of the Supreme Court and two senior Chief Justices of the High Courts without involving the participation of the Speaker of the House, the Prime Minister, the Leader of the Opposition, or any other jurist or any other person, authority or Tribunal. The Nation is again abreast of a question whether we are back to the Sapru Committee recommendations or the amendments moved by A.K.Ayyar and K.Santhanam were wrongly accepted and Clause (4) and (5) in Article 124 were wrongly added or whether the Judges (Inquiry) Act is faulty or whether a National Judicial Commission as recommended by the Law Commissioner is a proper substitute. India is already a country, after 1994, where Judges appoint themselves, with now an additional feather, of removing themselves if they so like. | |||||||||||||||||||||
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SOUTH ASIA POST INC. |
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THE
India nation is again affront of a debate that touches their paramount
institution, the judiciary and the justice delivery system, sometimes its last
hope. The reason is that judiciary is going the other institutions of
democracy, lethargic and partly corrupt and there is no institution to oversee
its working, though some checks are in place for lower judiciary. This has
affected the justice delivery system.
The
Adhoc Committee set up by the Constituent Assembly did not broadly agree with
the Sapru Committee report. Another committee 'The Union Constitution
Committee' ultimately reverted to the Sapru Committee report and recommended
to the Constituent Assembly that the Judges be appointed by the President in
consultation with the Chief Justice of the Supreme Court and such other
Supreme Court and High Court Judges as might be necessary and their removal in
the like manner. The report of the Union Constitution Committee was discussed
by the Constituent Assembly, on July 29,1947. The part of the report with
regard to appointment of the Judges was accepted without much controversy but
the procedure for removal was strongly objected to by Sir Alladi Krishnaswamy
Ayyar who urged the adoption of the "practice in all the dominion
Constitutions" of impeachment. In his opinion to empower the President to
set up Tribunals of Inquiry was to bring Judges on a level "with Govt.
servant". K.Santhanam moved a similar amendment. Although the Sapru
Committee was of the view that conduct of Judges of higher courts should not
be discussed in the heated atmosphere of a political assembly, although such
practice is prevalent in England. The Constituent Assembly adopted Sir
A.K.Ayyar's amendment on May 24,1949 and Clause (4) was added in Article 124
providing "a Judge of the Supreme Court shall not be removed from his
office except by an order of the President passed after an address by each
House of Parliament supported by a majority of a total membership of that
House and by a majority not less than two-thirds of the members of the House,
present and voting, has been presented to the President in the same session
for such removal on the ground of proved misbehaviour or incapacity. The same
was to apply to the removal of a High Court Judge. Clause (5) was added that
Parliament was to regulate the procedure by enacting a law separately. As a
result Judges' (Inquiry) Act was passed in 1968 providing a procedure that
entailed practically impossibilities. Providing that motion for
presenting an address to the President praying for the removal of a Judge be
signed in the case of a notice given in the House of People, by not less than
hundred members of the House and in Council of States by not less than fifty
members of that Council. On receipt of the notice the Speaker or the Chairman,
as the case may be after consulting such persons as he think fit and after
considering such materials, if any, admit the motion or refused to admit the
same. In case it is admitted, it is to be kept pending and a Committee is to
be appointed for making an investigation comprised of one from among the Chief
Justice and other Judges of the Supreme Court, one from Chief Justices of the
High Courts and one a distinguish jurist. If the charges are reported to be
proved the motion is taken up and Members of the Parliament convert themselves
into judicial members, hear the case as Judges of a Bench and deliver their
judicial verdict as to the misbehaviour or incapacity and if verdict is
carried, it is to be presented to the President.