National Judicial Council
At long last National Judicial Council Bill is to be placed before Parliament. The main purpose of this Bill is to constitute a mechanism which would enquire into the acts of misbehaviour and incapacity of the judges of the Supreme Court and High Courts. In the good old days, it was assumed that the occasions for misbehaviour by the higher judiciary will be so rare or almost none that remedy of removal by impeachment by the Parliament was considered a sufficient safeguard. But unfortunately, in the changed scenario, no longer.
The judiciary, in spite of its obvious drawbacks, continues to enjoy the confidence of the public. That is a good sign, because a democracy cannot function properly if there is a lack of judicial objectivity and fairness. But it also must be recognized that it was for that very reason that it had been felt in legal and political circles that in disciplinary matters concerning the higher judiciary, the present position of the Supreme Court alone being the exclusive mechanism, is no longer satisfactory and that there was a need for a judicial council to deal with matters in a more transparent manner.
Fears have been expressed that accusations of misconduct — before they have been established as credible — would affect the independence of the judiciary. I cannot agree because judiciary like any other institution in a democratic State, necessarily should be open to receive a critical comment from the public.
The necessity of Council is based on the undisputed fact that the judges do not come from another planet — they come from the same stock as the rest of society, and subject to the same frailties. It is no secret that the antics of some of them do bring shame to judiciary. No protection is sought for them. The Supreme Court itself has emphasized that society's demand for honesty in a judge is exacting and absolute. I am of the view that the public at large has a legitimate stake in the judiciary and has a strong justification to insist that the question concerning the integrity of judiciary cannot be the preserve of the small free-masonry of the judiciary. Itself it is in that context that I feel that the Council must have one lay person as a member – he could be selected by the Prime Minister in concurrence with leaders of the opposition in both Houses of Parliament. A retired judge of the Supreme Court could be a full-time member because sitting judges may not have sufficient time.
It is being suggested that the name of the complainant should, if request is made, be not made public. This provision is totally unacceptable. A person who makes such serious allegation cannot be allowed to hide beyond anonymity – and defame the judge in an irresponsible manner.
Suggestion that the provision like the Council will interfere with the independence of judiciary in an insult to our judges who by far and large have amply demonstrated their independence even in extremely sensitive matters concerning the highest in the State. I also believe that proceedings before the Council should be public unless for any special reasons recorded in writing the Council is of the opinion that the proceedings should be held in private. The whole scheme is of transparency – and sunlight is the best disinfectant.
Such like provision exist in other Commonwealth countries also. New Zealand has a Judicial Conduct Panel Act. This panel consists of two judges and a lay person. The hearings are done in public.
In Canada, the Judicial Council was established in 1971. About 66 per cent of the complaints are concluded within three months, and over 94 per cent within six months. Similar is the position in Australia which has a Parliamentary (Judicial Misbehaviour or Incapacity Commission) Bill 2005. The Commission consists of 3 members, 2 of them to be appointed by the Senate and the Speaker of the House of Representatives on the recommendations of the Prime Minister and one to be appointed jointly by the President of the Senate, Speaker of the House on recommendation of the Leader of the Opposition and at least one of the members is to be a Judge or a retired Judge of the Supreme Court. The Commission is to report whether in its opinion the facts amounting to proved misbehaviour exist which warrant the removal of the judge.
Thereafter, the matter is then dealt with under the constitution for removal of the Judge by the Parliament by impeachment proceedings. One of the important aspects to enhance the credibility and impartiality of the Report is a provision in Section 27 of the Act to provide that the question of proof is on the balance of probability making it clear that simply because the charge of misconduct which may include bribery and others are akin to quasi criminal charges the proof will not be that of a beyond reasonable doubt rather than on a balance of probability as in civil cases. I think similar provision should be provided in our proposed legislation. This is in recognition that greater proof of integrity and honesty is to be displayed by judges then the ordinary government servant – judges and legislators need to be judged by a greater incisive test, to satisfy the credibility test of the public.
Some people may object that the proposal to appoint the Judicial Commission will act as a deterrent for open, independent functioning of the Judges, especially where the State or the Government in power is involved. In my view, such an apprehension is an insult to judiciary who by and large has shown independence and fair dealing, unfettered by any question of prejudice or fear from the highest in the Govt. I may give some extract from Judicial Commission of New South Wales (Ireland) Annual Report which stated “In conferring a complaints function upon the Commission the Parliament struck a balance between independence and accountability. Judicial independence is not some kind of industrial benefit generously extended to judges and magistrates; it is a fundamental principle of our society’s constitutional arrangements…” .