Will judges now become more accountable?

A Judicial Council is clearly better than the impeach-or-nothing option that prevails today, but whether this should be fully in-house is the issue.

Arun Jaitley,
Former Union Law Minister and BJP General Secretary

"In-house mechanism of dealing with complaints has not succeeded. Merely giving it a statutory camouflage will not improve matters"

Two important issues relating to the appointment of judges and the accountability of the judicial institution have been a matter of debate for the past three decades. The independence and credibility of the judicial institution is the cornerstone of Indian democracy. The judicial institution needs to be powerful, independent, fearless and credible. The need, therefore, is to induct the best talent. Judges are like Caesar's wife; they have to be above suspicion. Judges also have to be protected against baseless allegations. The need, therefore, is to create a viable system to deal with judicial appointments and judicial discipline. Both subjects are intrinsically inter-related.

The 1970s witnessed a qualitative deterioration in judicial appointments. Initially, judges were sought to be appointed on the basis of their social philosophy. The 1980s witnessed a sharper decline. The judgement of the Supreme Court in the first Judges' case emboldened the executive to appoint judges who were politically close to the powers that be. This experience generated a great deal of resentment and a debate with regard to an alternative system of appointment. The second Judges' case created a primacy of the judicial institution in the matter of appointments. The third Judges' case democratised the entire process of appointment by creating a primacy of a collegium of judges rather than the Chief Justice. The quality of Indian politics does not inspire me to suggest that the executive should have primacy in judicial appointments. The present system of collegium is certainly superior to its earlier two precedents but the process is slower, leaving a large number of vacancies. Second, the practice of politicising appointments has been diluted. Third, however, the quality of appointments has not shown a substantial improvement.

With regard to the process of judicial accountability, the judiciary has always preferred an in-house mechanism to deal with various complaints and acts of misdemeanours. The in-house mechanism does not enjoy a high degree of capability. There is no transparency in the system. The recent suggestions emanating from the Union government with regard to a Judicial Council comprising of judges alone to deal with the complaints of misdemeanours, is merely a statutory recognition to a prevailing non-statutory in-house mechanism. It is not likely to improve matters. Both the process of appointment as also the process of disposing of complaints has to be dealt with by a constitutionally-created National Judicial Commission. It should have primacy of the judicial institution. There should also be a representative of the executive, as also representation of at least two eminent public personalities appointed by a high-powered collegium. Such a body should also be dealing with any complaints against judges. Its functioning must evolve over a period of time. It is only then that the credibility of the institution would be established.

G E Vahanvati,
Solicitor General of India

"The review process has to be in-house. You have to guard against a situation in which allegations against judges are made easily"

When the Constitution was drafted, the main concern of the Constituent Assembly was to preserve the independence of the judiciary and one of the methods chosen was to ensure security of office "" so, once a judge has been confirmed, his tenure is secure.

Over the years, with some decline in standards, the problem that arose was of how to deal with aberrations in the system. Here again, it is important to insulate the judiciary from vexatious complaints, filed by litigants who are disgruntled.

So, it was important to set up a mechanism to deal with this within the judiciary "" it could not be outside the judiciary. And that is precisely what the proposed National Judicial Council will do. Ultimately, it is the Chief Justice of India who is the head of the judicial family and he will preside over the process.

In the US, as in India, the process of dealing with aberrations was the same, that of impeachment of judges. They then brought about a system like the one we are talking of, of judgement by peers, and several judges have been persuaded to resign when they were censured.

We have also had the policy of transferring judges whose reputation was not above board, but this didn't really work to deal with the problem. Several years ago, for instance, the Bombay High Court was the transferee court (that is, the judge was transferred to Mumbai, supposedly as a punishment) and we had to deal with huge problems as a result of this.

The NDA government had proposed that the executive also be a member of this National Judicial Commission, but this involved compromising the independence of the judiciary, which is simply not acceptable. It is important that the process of review has to be in-house.

Most important, you have to guard against a situation in which allegations against judges are made easily. There are today a large number of complaints the chief justice of a high court gets against judges in subordinate courts, but these are examined internally without harming the reputation of the judiciary.

It must be kept in mind that even under the present system, the process of review of the subordinate judiciary is an internal one, where the chief justice of the high court conducts the investigative exercise administratively. And there are lots of examples of judges in the subordinate courts being actually removed. Some even resign once they see the writing on the wall. So there is evidence the process is working. What is being proposed is that the same process be used in the case of the higher judiciary as well.

(As told to Sunil Jain)