Joginder Singh Toor

AT last on October 9, 2008 the Union Cabinet after much deliberations, has given nod to the Judges Inquiry Bill, 2008. The much awaited National Judicial Council, instead of Judicial Commission as originally conceived, is likely to come into being. “The bedlam” as Justice Krishna Ayer puts it, has created ‘abioses’ a non viable state in constitutional law relating to Justices of the Supreme Court and the High Courts in making them accountable, which at present, because of the in effective and non-workable Judges Inquiry Act,1968 has rendered them, in the eyes of many as erratic and non justiciable. “Abiosis distorts law” and “deadens the survival strategy of millions” “why has the legal system suddenly suffered a disaster syndrome.” He wonders. The slow pace with which the bill traversed little journey till 1993, the day the lone impeachment in India of Justice Ramaswamy trembled, had almost lost hope of the survival of Judicial values.

98th Amendment Bill, 2003, to establish a National Judicial Commission and amend Art. 124, 217, 224 and 231 for removal and appointment of Judge and creation of common High Courts for two or more States, lapsed due to the dissolution of the Lok Sabha. After the formation of the 14th Lok Sabha a concept paper on National Judicial Council was prepared by a member of the National Advisory Council (NAC). Judges Inquiry Bill, 2005 was drafted and forwarded to the Chief Justice of India for comments who recommended that the Law Commission should examine it. Law Commission presented its report in 2006. Revised Judges Inquiry Bill, 2006 incorporated almost all the Law Commissions recommendations. 1968 Act was to be replaced with provisions providing for the formation of National Judicial Council to investigate the complaint of misbehaviour and physical or mental incapacity of Judges of the Supreme Court and High Courts. National Judicial Council is to consist of Chief Justice of India and two senior most Supreme Court Judges and two High Court Judges. If the complaint is against a member of the National Judicial Council, the member is to be replaced by next senior most justice of the Supreme Court. National Judicial Council is to set a code of conduct and guidelines for the behaviour of the Judges. Code to include the revelation of assets by the High Court and Supreme Court Judges. As regards procedure for inquiry: complaint against a High Court or Supreme Court Judge can be filed by any person within two years of the alleged infraction or occurrence. If the complaint is found frivolous, vexatious, malafide or not made in good faith, complainant can be punished for one year rigorous imprisonment or Rs.25,000 fine. If the motion originates in Parliament for removal of a Judge signed by 100 M.Ps of Lok Sabha or 50 M.Ps of Rajya Sabha, it has to be referred to National Judicial Council for investigation instead a Committee to be appointed by the Speaker, as earlier provided in the 1968 Act.

National Judicial Council may constitute a Committee of one or more of its members, and may recommend as interim measure stoppage of work to the Judge. Information and documents are not to be revealed except on permission from National Judicial Council. If found prima facie guilty, the Commission may recommend regular inquiry and may frame a charge. The Judge may file written statement. National Judicial Council may, impose minor punishment instead of recommending removal of the Judge, if circumstances so warrant.

If charges are proved and warrant removal of the Judge, the National Judicial Council shall advise the President who will cause the same to be placed before Parliament. And the motion shall be taken up in one of the Houses of Parliament to impeach the Judge. In case the motion has originated in the Parliament by a petition of 100 or 50 M.Ps, as the case may be, the National Judicial Council shall submit the findings to the Chairman or the Speaker and in case of charges not proved, the motion has to be dropped. If charges are proved the motion shall be taken up in the House concerned. As per Article 124, the motion shall be considered passed if it is supported by 2/3 of members voting and present, and by half the total strength of each House.

A Judge has the right to appeal to the Supreme Court against any minor measures taken by the National Judicial Council, but no appeal or review lies in case of removal by impeachment on address presented by the Parliament to the President. The Parliamentary Standing Committee had recommended that the constitutionally mandated due process is inherent and any provision allowing appeal would amount to action against constitutional authority.

The above recommendations made in the Judges Inquiry Bill,2006 have been re-considered in its meeting held on October 9, 2008 and decided to withdraw the 2006 Bill and present Judges Inquiry Bill,2008 with almost same provisions with regard to formation and powers of the N.J.C. Finance Minister, P.Chidambaram disclosed after the meeting that the new Bill would provide transparency in the functioning of the judiciary and will also enhance its prestige. The council will decide the penalties and Judges alone will be members of the N.J.C. The Bill is in consonance with the recommendations of the Parliamentary Standing Committee.

The people of India hope that at least Judges Inquiry Bill,2008, the third in succession will take the final shape and will become law. Let us hope and let it be so.

[Joginder Singh Toor is senior advocate and public affairs commentator jogindersingh_toor@yahoo.com]

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