NOT IN ACCORD: The Chief Justice of India, Y.K. Sabharwal, has reservations about the proposed Bill

Remember Justice V. Ramaswamy? When he was serving as a Supreme Court judge, he was accused of misappropriating funds during his earlier tenure as Chief Justice of the Punjab High Court. A judicial commission found him guilty. But he continued in the Supreme Court after Parliament failed to impeach him.

The Ramaswamy issue raises the question of judicial accountability ? an issue the government hopes to address as it gets ready to table a Bill in the coming session of Parliament. And, as expected, the Judges (Inquiry) Bill, 2005, has already kicked up a furore.

Last week, the new Chief Justice of the Supreme Court of India, Y. K. Sabharwal, expressed concern over the Bill. But law minister Hansraj Bharadwaj stresses that the government is going to go ahead with it. “The Bill is going to be tabled in the winter session,” he says.

Fifty-five years ago, the founders of the Constitution, in recognition of the judiciary’s role as protector of the law of the land, decreed that judges were not accountable to any agency in the country. Their accountability before the Constitution was in the form of Article 124, which empowers the President to remove a Supreme Court judge on the grounds of “misbehaviour/incapacity”.

Most judicial experts, however, describe the impeachment process as long and slow with little chance of the accused judge being dismissed. “Under the 1968 Act, the President can order the removal of a judge only after a majority of each house of Parliament has voted in favour of the removal,” says Justice Hosbet Suresh, former judge of the Mumbai High Court. “The voting follows a Presidential address to Parliament, after the allegations against the judge have been investigated and established by an impartial tribunal,” he adds.

But, as the Justice Ramaswamy case demonstrates, the process is open to criticism. Under the proposed law ? which, if passed, will replace the 1968 Act ? a high-level, autonomous body called the National Judicial Council (NJC) will investigate any complaint against a judge. “It will deal with people’s complaints,” says Bharadwaj.

The NJC will comprise the Chief Justice of India (CJI), the two senior-most judges of the Supreme Court, and two senior judges from the high courts. If the complaint is against an NJC member, the CJI will nominate the next senior-most Supreme Court judge for the case. In the case of the CJI himself being accused, he will not participate in the proceedings, his place taken by a judge appointed by the President.

The Bill is also expected to provide a mechanism for expediting the impeachment process if the NJC makes out a prima facie case against a judge.

Several lawyers, however, feel that there is a need to make the NJC recommendations binding on the executive. “Unless the recommendations are made binding, a scenario like that of Justice Ramaswamy might well be repeated,” says N.D. Pancholi, a human rights lawyer.

He also believes that the NJC should include a representative each of the government, the main opposition party and the National Human Rights Commission (NHRC).

Former Chief Justice of the Delhi High Court Justice Rajinder Sacchar on the other hand considers the Bill to be fine in its proposed form. He also dismisses concerns about the government using the Bill to “hit back” at an activist judiciary.

“These concerns come up whenever there is an apparent overlap in the responsibilities of the judiciary and legislature,” he says. “The vast majority within the legal fraternity agrees that there is a need for greater accountability,” he adds.

Justice Suresh, however, feels that the Bill could face some opposition. “I expect several High Court and Supreme Court judges to oppose the Bill,” he says, pointing out that Chief Justice Sabharwal has already made his apprehensions public.

Many jurists also believe that there is a need to expand the ground of ‘proved misbehaviour’ to include irregularity and inefficiency ? leading to a backlog of cases ? apart from corruption. The National Commission to Review the Working of the Constitution, under former CJI Justice M.N. Venkatachaliah, made several recommendations in 2002 to this effect in its report to the Centre.

The Bill, these jurists believe, fails to address the lack of transparency in the selection of judges, especially to the higher courts. Currently, a collegium of judges, consisting of the CJI and the four senior-most judges of the apex court, recommends judges to the executive, which either accepts or rejects the recommendations. “This structure lends itself to political manipulation. Also, there is often an implicit quid pro quo between members of the collegium, leading to favouritism in appointments,” says Justice Suresh.