Form council to fire errant judges: Law panel to Govt

It has also prescribed the procedure for inquiry into complaints against judges, official sources said.

If the recommendation is accepted, a judge, against whom a complaint is lodged, will have to face an NJC inquiry and provide his defence. If the charge is established, the judge in question can be removed by an NJC order without going through the “difficult” process of bringing in an impeachment motion in Parliament and garnering two-third support from MPs.

The most visible example was Justice Ramaswamy’s case. The judge, against whom corruption charges were levelled, could not be removed from office as the motion of impeachment failed in Parliament.

After allegations against a few judges of the Karnataka High Court, the “mass leave” by judges of the Punjab and Haryana High court and a series of allegations against judges of various high courts, the Government referred a draft proposal to the Law Commission and sought its recommendation on “accountability of judges”.

In its recommendation, the Commission said that the “impeachment” process of a judge could be done away with and replaced by inquiry and removal by a body like the National Judicial Council.

The nomenclature has been also changed from the National Judicial Commission, the formation of which has been widely debated over the years. The commission was proposed to be formed with the Chief Justice of India (CJI) heading it with the Prime Minister, Leader of Opposition in Lok Sabha, Speaker of Lok Sabha and Chairman of Rajya Sabha as members.

According to legal circles, the recommendation of the Law Commission is “only recommendatory in nature and not binding on the Government”. It could be “either acted upon or just rejected” as several earlier Law Commission reports and recommendations.

The current report and the recommendation has been handed over to Law Minister H R Bhardwaj who is slated to table it in the House during the Budget session. “Until it is laid in the House, the report and the recommendation cannot be made public”, official sources pointed out.

It’s learnt that the Law Commission is of the opinion that the present procedure of impeachment to remove a judge is very complicated and so it becomes very difficult to act against an errant judge.

Justice G B Pattanaik, as CJI, had remarked that “maximum I (as CJI) can ask a judge not to take judicial work and sit in a bench to decide matters… He will jolly well do it and sit at home and receive his salaries and perks and other status of a judge…. Only Parliament can remove a judge with two-third majority voting… the CJI should be at least given power to take action or at least act on a complaint against a judge of the Supreme Court and a High Court”.

This viewpoint was later echoed by Justice R C Lahoti as CJI. Even the present CJI Justice Y K Sabharwal had stated that “at least a few Constitutional functionaries (like the President, Prime Minister and the CJI) should be reposed with some faith”.