“The Judiciary was to be an arm of the social revolution upholding the equality that Indians had longed for”.
In India from times immemorial Judges have been held in highest esteem and revered as super humans. A Judiciary manned by Judges with vision, wisdom and compassion can do more justice and the welfare of the underprivileged, than all the laws and polices we can think of. In its Composition, the Judiciary must reflect the intellectual and social composition of civil society, its diversity and pluralism. Enormous responsibility, therefore, rests on the higher Judiciary for Judicial appointment, which under the present dispensation, almost exclusively with the Judiciary. There is an increasing focus on the issues of accountability of all organs of the States. Judiciary is no exception to this challenge.
A mechanism for accountability, conceived and implemented by the Judiciary itself, is the surest way to ensure judicial independence. An independent judiciary responding to the needs of our society goes a long way in strengthening democracy in our country.[1
The Indian Judiciary, by and large, maintains high standards of efficiency and integrity. The framers of Constitution wanted to protect and preserve the independence of Judiciary. This places a great onus and responsibility on the members and practitioner of Judiciary to maintain the highest standards of probity and integrity.
Legal institutions play a key role in the distribution of power and rights and in the over all development of the country. They also underpin the forms and functions of other institutions that deliver public services and regulate market practices. But inequitable justice system may perpetuate inequality traps. Therefore, building a more equitable justice system is very important.
In ancient India, Judiciary rendered good services to people. In shat sastras, law was one. In Epic age, historic ages, the judges are kings only. They are the ultimate source of justice. They were no separation between executive and judiciary. They rendered equal justice, not only to human beings but also to birds and animals also.
The King of Heaven Indra and the fire god Agni wanted to test whether Shibi was as great as people said in rendering Judicial Sanctity, Accountability, Bound to his words. Indra assumed the shape of a hawk and Agni that of a dove. The hawk started to pursue the dove. The dove came and sat on Shibi's wrist. The King promised the bird protection when it said that a hawk was about to kill him. The hawk, which was in close pursuit, soon landed at the King's feet. The monarch was surprised that both these creatures were speaking in human voice. The hawk said, "Oh King! Give me that dove on your wrist. I am hungry and want to eat it." The King replied, "I have promised the dove protection. I will give you flesh equivalent to its weight." The hawk mocked the King, "So you protect one creature and kill another to satisfy my hunger." The King said, "No. No. No. I shall give you my own flesh." The hawk was satisfied at the King's reply. Shibi called his servant to get a pair of scales. . He put the dove on one side and began to cut his own flesh and put it on the other scale. On first sight the dove seemed to be a small bird, but as King Shibi started cutting his flesh, the scale on which the dove was sitting would always go lower and lower. In the end, he thought the only way was to sit on the other scale himself. So that the weight of the dove and his own weight would be equal. Then the dove and the hawk revealed their real form. They said, "Oh great King! We are Indra and Agni. We came to test your truthfulness. And we are convinced that you are as great as people say." Saying this, they blessed King Shibi who became whole and the Gods then went away. The King could have said no to the bird or give away the dove to the hawk, but instead he stayed true to his word, his promise. He was willing to lose everything and follow his duty .
The Duryodhana approached his mother Gandhari to get her benediction to fight war, she said “yatho dharma sthatho jayaha’. In Ramayana and Mahabhartha, the Kings like Sri Rama and Janameya maharaja rendered justice to dogs also. Nannaya Bhattu, in his Mahabharatha says “One truth is more than the thousand aswhamedha yaga”.
It is universal truth, Rajaraja Narendara the King of Rajamahendravaram, Madhavavarma who ruled Vijayawada, for perpetrating the crime by their sons, imposed the death sentence to them in impartial manner and without showing any nepotism.
The above all reflects us the qualities of King who was executive as well as Judiciary steadfast to Truth, Justice, accountability, impartiality, no nepotism. Justice and truth are interlinked and both sides of the same coin. In those days all the judgments rendered on the basis of principles of natural justice i.e. justice, equity and good conscience.
During the reign of the then prime minister Lord Attlee of Britain, for the convenience of people and availability of king to the people seeking for justice, the special justice bell (Dharma Ghanta) was fixed. The people who needs justice rings the bell, Atlee accepted the complaints and rendered justice to people. One day, due to severe hunger, in search of food, the horse bites the thread of Dhrama ghanta and due to moment it rung. Immediately the Attlee came out and observing the hunger situation of horse and called the Master of the horse scolded him to immediately arrange the dhana or food.
In India, after independence certain judges acted suo moto and brought the reputation to the Lord of Justice. During the time of Neelam Sanjiva Reddy, the Court gave judgment against the Government, respecting the judgment he resigned.
Once the V.V.Giri was President of India, there was an occasion to attend before the Court. The doubtfulness arose whether the first citizen of India can be summoned or not? He voluntarily attended before the court in respective gesture to magistrate by saying namaskaram and made an oath. The Magistrate offered one small stool respecting his elder age and offered to sit due to his obesity and VV Giri simply and gently refused his offer. It is the greatness of VV Giri.
The Judiciary raised the confidence in public by ordering the police to use the force if necessary to bring the speaker of Goa Assembly for ignoring several summons.
In recent times, there was a lot of discussion on Judicial reforms and Judicial accountability. The Government is going to introduce Judges inquiry (Amendment) bill in next budget sessions of parliament. In any country, democracy should be meaningful means the persons decamping power must be accountable. It is very essential in a democracy.
In India even healthy public criticism of the Judges is branded as contempt of court and penalized. So many fear to make even a fair comment about Judiciary or its judgments. Independence of Judiciary which is treated as a basic feature of our Constitution actually means independence of Judiciary from pressures of other organs of the state. But unfortunately, it is translated as independence of judiciary from accountability. All irksome questions are avoided by taking the defence that it compromises with the Judicial Independence. Our Constitution framers thought in the welfare perspective of the Country, independent Judiciary may be good. Accordingly, Independent Judiciary has been maintaining under the Indian Constitution. Article 50 covers the separation of judiciary from executive. The State shall take steps to separate the judiciary from the executive in the public services of the State. Constitution conferred on the Supreme Court and High Court the power to grant most effective remedies in the nature of writs and to protect the rights and liberties of the people against the encroachment of the power by Government, legislative as well as executive. The limitations imposed by Constitution will be reminded by Judiciary. In that way, Judiciary protects and preserves the citizens rights and play very important role. At the same time, in the apex court too certain misbehaviour and allegations of corruption and bias. The impeachment proceeding initiated against Mr.Justice V.Ramaswami a sitting Judge of the Supreme Court of India is the first case after the present Constitution came into force. The Committee came to the conclusion that there was “willful and gross misuse of office, purposeful and persistent negligence in the discharge of his duties, intentional and habitual extravagance at the cost of the public chequer and moral turpitude by using public funds for private purposes in diverse ways. The Committee held that these ‘acts’ constituted ‘misbehaviour’ within the meaning of Article 124(4) of the Constitution.
The defeat of the motion for impeachment of Justice Ramaswami in the Lok Sabha has created new imperative for Parliament to amend the Constitutional provisions relating to the procedure for “removal” from office of the Supreme Court Judge on “grounds of proved misbehaviour”.
This is indeed an irony. The fathers of the Constitution had provided the safeguard in Article 124(4) essentially to keep judiciary independent of the executive. The requirement of a two-thirds majority in Parliament could not have been conceived to provide safeguard to a Judge whose conduct was under a cloud. The biggest victim of his conduct has been the judiciary. This demonstrates that not all was well with the highest court of the Country. Secondly, it also shows that there is no mechanism in the Constitution to punish a guilty Judge. This proved in case of Mr.Justice V.Ramaswami the implementation in the above said articles was difficult. From that onwards till recently to Justice Dinakaran caught in allegations of disproportionate assets and some others also entangled in slush. Justice Dinakaran not elevated to Supreme Court. There was also allegations’ relating to Ghaziabad PF Scam including one judge of the Supreme Court and nearly six High Court Judges and District Judges.
In a bid to ensure transparency in the functioning of the judiciary, the Government proposed to set up a National Judicial Council to probe complaints against judges of higher judiciary and decided to introduce the Judges (inquiry) Amendment Bill, 2008 in Parliament.
The bill seeks to establish a National Judicial Council with powers to investigate complaints against the judges of higher judiciary and recommend suitable action after following the prescribed procedure. The provisions of the new Bill would bring transparency in the functioning of the judiciary and would also enhance its prestige. The Union Cabinet has approved Amendment of the Judges (Inquiry) Act, 1968 for setting up a National Judicial Council that will investigate reported acts of misconduct by High Court and Supreme Court Judges. The bill will incorporate recommendations of the Law Commission and the new law aimed at bringing transparency in the functioning of the judiciary and will enhance its prestige.
Under the proposed new procedure, complaints can be made by any person against Judges of the Supreme Court and High Courts except Chief Justice of India. The new bill is likely to go to a committee and there will be wide spread debate and all stake holders will be consulted. The National Judicial Council will consist of the Chief Justice of India and two senior most judges of the Supreme Court to be nominated by the Chief Justice, two judges of the High Court to be nominated by the Chief Justice of India irrespective of their seniority. However, in the case of complaint or a reference against a judge of the Supreme Court, the Council shall consist of the Chief Justice of India and four senior most judges of the Supreme Court to be nominated by the Chief Justice of India. The Council will decide on the penalties on erring judges and judges alone will be members of the Council. In the backdrop of increasing allegations of misconduct against judges, the Parliamentary Standing Committee on Law and Justice had earlier asked the government to expedite the process of enacting a law on judicial accountability in 2008[2.
Any person may make a complaint involving an allegation of misbehaviour or incapacity against a judge, to the National Judicial Council. The complaint has to be filed within two years of the alleged infraction. If the complaint is found to be frivolous, vexatious or not made in good faith, the complainant may be punished with up to one year imprisonment and a fine up to Rs 25,000. The National Judicial Council may also choose to entertain a complaint from any other source.
If there were any allegations on council members, in the place of them the next senior member can be taken into council. This council may take action after conducting inquiry. But there are certain doubts also regarding the functioning of the Council. The reason is within the Council there may be colleagues and friends also which raises the question of impartiality. That is the reason the need of National judicial Commission is required in present day scenario very urgently.
Initiative for a National Judicial Commission
The need for a National Judicial Commission (which is independent of the executive and the judiciary) with an investigative machinery under its control, which can investigate complaints against judges and take disciplinary action and initiate action against them. The Campaign for Judicial Accountability and Reforms calls upon all sections of society to put pressure on Parliament and the government to bring a suitable Constitutional Amendment Bill for this purpose.[3
In 1987, the setting up of a National Judicial Services Commission (NJSC) was recommended by the Law Commission in its 121st Report. It prescribed that the Commission must be a body of experts drawn from various interest groups in close touch with the administration of justice such as judges, lawyers, law academics and litigants and include the Chief Justice of India, the three senior most judges of the Supreme Court, three Chief Justices of High Courts according to their seniority, Minister for Law and Justice and an outstanding legal academic.
Following this, The Constitution (67th Amendment Bill), 1990, was introduced to provide an institutional framework for a national judicial commission. The recent National Commission to Review the Working of the Constitution had suggested the establishment of a National Judicial Commission under the Constitution with the Chief Justice of India as Chairman and two senior-most judges of the Supreme Court, the Union Minister for Law and Justice, and one eminent person nominated by the President after consulting the CJI as members.
This may be expanded or pruned. Parliament, when it discusses the bill, must take note of the fact that judicial selection is not a secret operation and the names of the proposed candidate must be available for the people to know and respond. The performance of the judicial collegium, after the two signal rulings, has hardly been creditable, often been dilatory, arbitrary and smeared by favourites. The focus and locus of lobbing has shifted from Minister to Judge. The delay has continued, the quality has not improved, the merit criteria have not been articulated and the infirmities of the system persist. True there is less politics in the process but more personal affiliation. The field of selection is yet not democratically wide but confined to coteries. Of course, with all this criticism, those selected, before and after the Second Judges Case, have performed broadly well. The high office transforms the functionary. The findings of such a commission should be accepted in toto and suitable disciplinary action initiated against the errant judges. The Constitution (98th Amendment) Bill (2003), which seeks to ensure transparency in judicial appointments by constituting a National Judicial Commission, has serious flaws that can defeat its very objective. The Bill aims to introduce fairness in the procedure and meet the requirements of Article 21, guaranteeing protection of life and personal liberty. It finds it anomalous that while Satyameva Jayate (Truth alone triumphs) is the motto of the nation, truth should not be available as a defence.
National Judicial Commission should be constituted to look into the accountability of the judiciary system. Life and liberty of the people in the country are in the hands of these judges. We are entitled to know their character, life. If needed, amendment must be made to the Constitution with regard to the appointment of judges and their misconduct. We have every right to speak about the misconduct of a judge.
The Executive, the Legislature and the Judiciary are the main functionaries in the modern state. It is essential that these organs function harmoniously yet independently. Although there is a need for the system of mutual checks and balances, any excessive interference by one organ will hinder the smooth functioning of the other. It is of utmost importance to have an independent judiciary, particularly an independent higher judiciary as it is often only through this mechanism that excesses of the other two organs are checked and the maintenance of the Rule of law is ensured. We need, therefore, a forum for correction and disciplinary purposes since judicial misconduct is escalating.
According to Constitution, Judges of Supreme Court and High Court are accountable to none. It is true that judiciary must be independent and remain uninterfered. However, the confidence of the people in judiciary is being eroded as they are not accountable.
Justice Venkatachalaiah, former Chief Justice of Supreme Court who headed National Commission to Review the Working of the Constitution had suggested the judges should be accountable. Unfortunately, the two volumes of his suggestions are lying idle. The Law department did not even look at it.[4
It is for that reason that there is now near unanimity amongst legal and political circles that in the matter of appointments, transfers, removal, disciplinary matters of Higher Judiciary, the present position of Supreme Court alone being the exclusive mechanism is no longer acceptable. There is also near unanimity that National Judicial Commission (N.J.C) should be constituted to deal with all these matters. It is not a revolutionary suggestion – rather it is to be found in number of countries.
There is now insistent demand from the public that in matters dealing with appointments and other misdemeanors by Higher Judiciary needs to be carried out by an Independent Body using transparent criteria, instead of the present unsatisfactory mechanism shrouded in secrecy and controlled by a small cabal. It is for this reason that National Commission to Review the Constitution headed by former Chief Justice of India Mr. Justice Venkatachaliah has also advised the constitution of a National Judicial Commission.
A mechanism like a National Judicial Commission will be able to impress upon the concerned judge either to desist from such activities or remit that office in disgrace.[5
Opinion or Views on National Judicial Commission:
Hon’ble Justice G.B. Pattanaik
“I am of the opinion that if it is constituted, its working will be very, very difficult. With the prime minister, home minister and law minister in the body, as well as the CJI and three senior judges, it is difficult to get a convenient time for all of them to meet and decide. As far as the antecedents of the appointees is concerned, the collegium gets information from different sources which I don't think the PM or the home minister or law minister can get”.[6
Former CJI A.S. Anand: “Judges are accountable to one billion people. With that in view, a committee of SC judges drafted a code of conduct (Restatement of Values in Judicial Life) which was adopted by all the high courts. We also drafted a procedure for dealing with judges who flouted the code. This, too, was accepted. But no statutory base has yet been accorded to the code, despite representations to the government.”
He also reminded the judges that though “our function is divine, the problem begins when we start thinking that we have become divine”. To similar effect is the expostulation of Justice Frankfurter of the U.S. Supreme Court that "all power is of an encroaching nature. Judicial power is not immune to this human weakness. It must also be on guard against encroaching beyond its proper bounds and not the less so since the only restraint upon it is self-restraint".[7
Former SC judge V.R. Krishna Iyer: Impeachment is an extraordinary remedy which rarely operates satisfactorily... We need, therefore, a forum for correction and disciplinary purposes since judicial misconduct is escalating[8.
Hans Raj Bhardwaj: “This idea of National Judicial Commission is not a good one, and the present system of appointment of judges is a good procedure. The present procedure has important components of careful scrutiny and consultation. Presently appointments are done after the chief Justices of High Courts discuss with the fellow judges, with state governments and also consult the Supreme Court Chief Justice. After due care only the names are sent to the President. Now, this idea of a commission would only lead to deadlocks and fights, which I think is not good for the judicial image. This idea does not seem workable, and I feel that this procedure which we have been following since past five decades is a good one based on consultation -- and it works”.[9
The former Chief Justice of India, P.B. Gajendragadkar, said: “Wise judges never forget that the best way to sustain the dignity and status of their office is to deserve respect from the public at large by the quality of their judgments, the fearlessness, fairness and objectivity of their approach and by the restraint, dignity and decorum which they observe in their judicial conduct.”
Addressing a press conference, Shanthi Bhushan, Ram Jethmalani, Prashant Bhushan and others, said initially the Executive had primacy in the appointment of judges, and later the Judiciary. However, both methods had failed to yield the desired results. Therefore, the only way was to set up a National Judicial Commission, which could deal with appointment, transfer and removal of judges and ensure judicial accountability.
They alleged that the growing corruption within the judiciary had been recognised by the highest within the judiciary and the executive. "This has been accentuated by the absence of any credible and effective mechanism to secure the accountability of the super judiciary. The process of impeachment has completely failed and increasingly the power of contempt has been used to gag the media to prevent public discussion of judicial wrongdoing," they said.[10
Moment of Judicial Accountability-Bangalore Principles of Judicial Conduct
The Bangalore Principles of Judicial Conduct were approved and finalized in November 2002 by the Judicial Group on Strengthening Judicial Integrity in collaboration with the Consultative Council of European Judges of the Council of Europe and the American Bar Association. These principles were presented to the United Nations Commission on Human Rights in April 2003 and they were unanimously supported by the member States. In a resolution the Commission noted these Principles and called upon member States, the relevant UN organs, intergovernmental organizations and non-governmental organizations to take them into consideration. In many commonwealth countries judicial accountability has assumed importance and the judiciary in many countries can no longer use judicial independence as a defence for providing accountability. It is also held that one method of ensuring judicial accountability is to ensure speedy and relatively transparent method of dealing with complaints against the judiciary.
One must realize that while in countries like India where the judiciary is relied upon by the citizenry to solve many of their difficulties, it is the consistent standards of accountability that give the Indian judiciary this strength. The moment this judicial accountability wavers, political forces and vested interests would not hesitate to use it as a tool to reduce the credibility of the judiciary. Whereas, a strong judicial institution can often lead to a stable political atmosphere as well as better governance by the State.
We must also recognize that maintaining the highest standards in terms of judicial work and justice delivery is also inherent to the idea of judicial accountability. This essentially requires that the judiciary at all levels is not only highly skilled but is also kept abreast with the latest development in the law and practice. Thus constant training and up gradation of skills must be part of any judicial officer’s schedule. Such training modules must necessarily include a study of the international legal scenario, including subjects, such as, international human rights, humanitarian, refugee law, intellectual property law and environment law. A judicial officer must also be in constant known of the social and economic reality of his country to ensure that his judgments are practical as well as acceptable to the public. It is only when a judicial officer if equipped with such knowledge that he can match the high standards of expectations that most countries have from the judiciary, as opposed to other arms of the State. As has been evident, a mis-match of expectations and delivery from all organs of the State is sometimes the recipe for large-scale human suffering.
At the same time, we need to remind ourselves that perhaps the worst form of injustice in any civilized society is injustice perpetrated through the judicial process. The judiciary in every polity has been provided with several immunities under their respective Constitutions to ensure their smooth and impartial functioning. However, it is well understood that if the judiciary by their performance and conduct does not meet the expectations for which such Constitutional protection has been provided, the judiciary will be reduced to any other organ of the State which we have come to distrust in recent times.
Over the ensuing decades, there were frequent allegations that the executive exerted too much control over judicial appointments. In 1974, in Shamsher Singh v.State of Punjab, the Supreme Court stated that appointments to the Supreme Court or High Court must have the approval of the Chief Justice of India. There was a brief withdrawal from this stance in S.P.Gupta in 1981 when the Supreme Court gave the President the option to disregard the Chief Justice’s recommendation. In a historic judgment In S.C.Advocate on Record Association v. Union of India popularly known as Judges Transfer case, a nine judge bench of the Supreme Court by 7-2 majority overruled its earlier judgment in the Judges Transfer case (S.P.Gupta v. Union of India)[11 and held that in the matter of appointment of the Judges of the Supreme Court and the High Courts the Chief Justice of India should have primacy.
Since then, however, the march towards judicial control over judicial appointments has continued.
The framers were even more successful at insulating the judiciary from executive or legislative oversight. Not a single Supreme Court or High Court judge has been removed from the bench through the impeachment process, despite almost incontrovertible evidence of misconduct in at least one case. The Constitutional requirement of a two-thirds majority in both Houses of Parliament for the impeachment of a judge has effectively guaranteed the judiciary protection from removal regardless of conduct.
The Indian Judiciary is an anomaly. In no other country of the world is the judiciary, so insulated from the will of the executive and legislative branches, and , as an extension of this, from the will of the people. In time, this has turned the judiciary’s position as the champion of the people into something of a contradiction, as the least accountable branch of government has styled itself the most responsive to the people.
In 1990, the then Union Minister of Law and Justice introduced the 67th Constitutional (Amendment) Bill in Parliament. The Bill provided for the creation of a National Judicial Commission for the appointment of Supreme Court and High Court Judges. The composition of the Commission was to be different for Supreme Court and High Court appointments. For appointments to the Supreme Court it would comprise the Chief Justice of India and the two Supreme Court Judge next in seniority. For appointments to the High Court it would comprise the Chief Justice of India, the Supreme Court judge next in seniority, the Chief Minister of the Concerned State, the Chief Justice of the relevant High Court, and the High Court judge next in seniority.
No action was taken on the bill but the system of Supreme Court appointments that it envisaged was mandated three years later by the Supreme Court itself. In Supreme Court Advocates-on-Record Association v Union of India[12 the Court ruled that the Constitution’s provision that the President appoint Supreme Court judges in “consultation with such Judges of the Supreme Courts…as the President may deem necessary” (Article 124(2) meant that the advice of the Supreme Court judges was binding upon the President. It also resolved that the judges involved in this ‘consultation’ would be the Chief Justice of India and the two judges next in seniority. This decision was upheld in 1998[13 in the Third Judges case, only slightly modified to involve the Chief Justice of India and the four judges-rather than two-next in seniority as well as all Supreme Court judges from the candidate’s High Court.
The Court also laid down a system for appointments to the High Court. The Constitution requires the President to consider the opinion of the Chief Justice of the High Court in question, the relevant Governor, and the Chief Justice of India. The Court ruled that the Chief Justice of the High Court and the Governor must make their recommendations but that the advice of the Chief Justice of India, delivered in consultation with the two judges next in seniority, would prevail.
The system of appointment to the higher courts, as stipulated by the Constitution and as interpreted by the Supreme Court, has always placed the highest premium on judicial independence. India is unique in the degree of judicial control over judicial appointments. In no other country in the world, does the judiciary appoint itself.
Unfortunately, the strong insistence on judicial independence in the appointments process has had its attendant problems.
ii) Political, caste and communal considerations
The current system of appointments is not open to public scrutiny and it is therefore difficult to determine the criteria for appointments. In many cases it seems that seniority is used as a proxy for merit.
Thus, our chief concerns with the current system of appointment are the lack of accountability and transparency, the difficulty in getting people of adequate ability onto the bench, and the significant delays in appointing judges to the High Courts.
The Supreme Court of India and the High Courts set the standard for judicial conduct and competence in the country. We must see that only candidates of the highest integrity and ability are appointed to these courts and that, once judges, they perform their duties with honesty, dedication and skill. This requires a degree of scrutiny in judicial appointments and oversight impossible under the current system. It is vital that we create a National Judicial Commission, combining input from the elected branches of government and the judiciary, to appoint and oversee the judges of the Supreme Court and High Court.
The experience of diverse jurisdictions described above supports the inclusion of the Prime Minister and legislators in the appointment process. This is essential to ensure that the judiciary, while remaining independent of other branches of government in fulfilling its duties, is not completely insulated from the input and vigilance of the people’s representatives. We cannot expect the judiciary to appoint itself and then oversee itself. Both these elements are inappropriate in a democracy. The best solution is a National Judicial Commission (NJC) drawn from the executive, legislature and judiciary. The most practical and acceptable composition would be a seven-member NJC with the following members:
# The Vice-President as Chair of the Commission
# The Prime Minister or the Prime Minister’s nominee
# The Speaker of the Lok Sabha
# The Law Minister
# The Leader of the Opposition in the Lok Sabha
# The Leader of the Opposition in the Rajya Sabha
# The Chief Justice of India
In matters relating to the appointment and oversight of High Court judges the Commission will also include the following members:
# The Chief Justice of the concerned State
# The Chief Justice of the concerned High Court
The NJC can be authorized to solicit view of jurists, representatives of the Bar and the public in any manner the Commission deems fit. Also, NJC can have the option of inviting two jurists to be non-voting members.
One question which needs to be addressed is whether the advice of NJC should be binding on the President. Upon the Commission’s recommendation, the President can appoint the candidate, return to the Commission for further consideration, or reject the candidate. Rejection or returning a name should be backed by reasons recorded in writing and communicated to the Commission. If rejected, the Commission cannot resubmit the candidate. But if a name is simply returned, the Commission would be free to resubmit a candidate returned for reconsideration. The President should then appoint a candidate whose name has been resubmitted for appointment.
Then we need to address the question of oversight of the higher judiciary. Clauses (4) and (5) of Article 124, Article 217 and Article 218 govern the procedure for removal of judges of Supreme Court and High Courts. However, past experience shows that this mechanism has failed, and the Parliament could not effectively exercise oversight functions in respect of judiciary. Given this background, it would be most appropriate if NJC is entrusted with the responsibility of oversight of judiciary. The Judges Enquiry Act could be suitably amended to empower NJC to constitute a committee comprising of a judge of the Supreme Court, a Chief Justice of a High Court and an eminent jurist to investigate into complaints. Upon receiving the report of the Committee, NJC would consider it, duly giving an opportunity to the judge concerned to present his case. The NJC can then recommend dropping of charges, or censure or removal. Dropping of changes or censure would require a majority support, while removal would require support of the two-thirds of the members of NJC. The recommendation made by the NJC will be binding on the President. Such a procedure will harmoniously reconcile the requirement of restraint and balance in dealing with the higher judiciary with the need for effective, independent and bipartisan oversight of judiciary.
The creation of such a Commission will require changes in three places in the existing laws. Any change in the process of appointment for the Supreme Court will require that Article 124 of the Constitution be changed to provide for a National Judicial Commission. A similar change will have to be made to Article 127. Also, since the commission is to have the authority to oversee and discipline judges, further changes will need to be made to Article 217 (Clause 4). As per Article 218, such a change would apply equally to the High Courts. Finally, the Judges (Inquiry) Act, 1968 dictates the procedure for an inquiry into judicial misconduct currently in use. This must be changed to reflect the use of a standing Commission, responsible for the inquiry into as well as the removal of judges against whom charges of corruption or gross incompetence are established.
Public confidence is high in judicial appointment and oversight the processes that use commissions. While this alone is not sufficient reason to create nominating commissions it clearly represents that the greater the range of inputs and the more transparent the process of appointment, the more people will trust judges and the judicial system. Overall, the use of a commission for selection and oversight will go a long way in making our higher judiciary more competent and trustworthy, and deserving of the luster it once had.
However, recent events have shown that there is considerable corruption in the judiciary, even at the top. Neither the government nor judiciary have bothered to put in place a credible, independent and transparent system for the appointment of judges and for investigating and taking action against those involved in misconduct.
The time has come for civil society and the media to realize their strength and use it to compel Parliament to amend the Constitution and put in place a National Judicial Commission as a permanent body for the appointment and removal of judges. It should consist of the following five members: A chairman to be nominated by all judges of the Supreme Court; a member to be nominated by all the chief justices of high courts; a member to be nominated by the Union Cabinet; a member to be nominated by a committee of the leader of opposition in the Lok Sabha, in consultation with the leader of different opposition groups in the two houses of Parliament; the fifth member could be nominated by a committee of the chairman of the Rajya Sabha, speaker of the Lok Sabha and attorney general of India. It is better to include one member from Bar Council of India. Since different members would be nominated by different functionaries and since they would enjoy a fixed tenure (during which they could only be removed by impeachment), they would act independently and also function as checks and balances on each other.
Conclusion:- The judicial commission is an absolute necessity to put in place a transparent system for selecting judges for appointment. They should also have investigative machinery at their disposal, through which they can evaluate complaints against judges and proposed candidates investigated.
Such an institution is more likely to result in the selection of proper candidates and would introduce at least a modicum of urgently needed accountability in the judiciary. We need to work to create the necessary public opinion to put pressure on Parliament to enact this constitutional amendment.[14 The people of India deserve an efficient and clean judiciary, particularly at the apex level.
1 Nyayadeep, Vol.V, Issue.1, Oct, 2004, P.19
2 http://www.outlookindia.com/printarticle.aspx?235275 Visted on 10th February, 2010.
http://www.outlookindia.com/article.aspx?218095 Visited on 8th February, 2010
[9 http://www.outlookindia.com/article.aspx?224496 Visited on 12th February, 2010
[10 http://www.hinduonnet.com/2004/10/16/stories/2004101603471300.htm Visited on 8th February, 2010.
[11 AIR 1982 SC 149
[12 (1993(4) SCC.441)
[13 AIR 1999 SC 1
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