The Law Commission of India has come down heavily on the Judicial Standards and Accountability Bill, 2012, asking the government to come up with a new Bill, one that “ensures judicial accountability in an effective manner while not adversely affecting judicial inde-pendence at the same time”.
In a note sent to the Union Law Ministry, Law Commission Chairman Justice A P Shah covered all the important clauses of the Bill, which was passed by the Lok Sabha in March 2012, and raised issues of constitutionality of the proposed law.
In the note, Justice Shah termed the definition of misbehavior in clause 2(j) of the Bill as “over-inclusive and under-inclusive at the same time”. Elaborating, he said that the definition was over-inclusive because even a “minor infraction” would constitute misconduct, an act for which impeachment has been given as available remedy.
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It was also under-inclusive, the note adds, since the definition was very expansive. “Though it has a residuary clause ‘conduct which brings dishonour or disrepute to the judiciary’, this definition is so vague so as to be redundant,” he said.
The former Delhi High Court chief justice also takes exception to the Bill aiming to lay down statutory judicial standards. “The statutory laying down of judicial standards, thereby making the non-observance of such standards justiciable, opens a Pandora’s box of litigation. For example, Clause 3(f) provides that no judge shall ‘enter into public debate or express his views in public on political matters’. This is a widely worded restriction and considerable litigation can be expected to ensue, including several cases of vendetta by losing litigants, on the connotation of ‘views expressed’, ‘political matters’, etc,” his note says.
The previous UPA Government had introduced the Bill which, among other things, provides that judges be required to declare their and their kin’s assets, lays down judicial standards, and establishes processes for removal of members of the higher judiciary.
It also proposed establishing a National Judicial Oversight Committee, a Complaints Scrutiny Panel and an investigation committee to go into complaints against judges of the Supreme Court and high courts.
The Law Commission Chairman is not enthused with this plan too, saying “very little discretion” is vested in the Oversight Committee. “Besides, the composition of both the Oversight Committee and the Scrutiny Panel is preponderantly judicial. It is unclear why two bodies are required, a set-up that has significant potential to delay the entire process of scrutiny and oversight. Besides provisions relating to tenure, re-appointment of non ex-officio members, remuneration and removal of members of the Oversight Committee are not dealt with at all,” Shah says.
The jurist reserves his most scathing comment for the end, questioning the constituionality of the provision that allows members of the public to allege misbehaviour on the part of a sitting Supreme Court or High Court judge, something that could ultimately result in impeachment.
“Article 124(5) of the Constitution empowers Parliament to only make laws to regulate the procedure for presentation of address of impeachment and for the investigation and proof of misbehaviour or incapacity of a judge. It does not allow Parliament to create another forum that results in impeachment proceedings resulting from a complaint filed by one person. Such complaints, especially if made incessantly, and their mandatory consideration by the Oversight Committee, can also have a debilitating effect on judicial independence. This is a very likely possibility given the vast number of dissatisfied litigants who already file complaints in the High Court despite there being no established statutory procedure for doing so. Questions surrounding the constitutionality of such a complaints mechanism and its effect on judicial independence will have to be studied more closely before such a Bill is introduced,” his note reads.
Sources in the Law Ministry said the views expressed by the Law Commission Chairman would be considered before a final decision is taken on the fate of the pending legislation.