Here is a Bill, introduced by the Union minister for law and justice, H. Bharadwaj, which “aims at bringing greater transparency in the judiciary and making judges more accountable”. This Judges Inquiry Bill is an attempt to ensure judicial accountability by seeking to probe allegations of misbehaviour against Supreme Court and high court judges, through the proposed National Judicial Council (NJC). The Bill proposes to replace the existing Judges (Inquiry) Act of 1968.

The Bill lays down the procedures under which “any person” can register complaints with the NJC against judges, barring the Chief Justice of India (CJI). The NJC will comprise the CJI, two senior-most judges of the apex court and two senior-most chief justices of high courts nominated by the CJI. However, in case of a complaint against an SC judge, the council shall consist of the CJI and four senior-most judges to be nominated by the CJI.

This is where the problem arises. Says a retired judge, “Having high court judges sit in judgment over an SC judge might not be a proper and desirable action.”

A similar Bill introduced in Parliament by the National Democratic Alliance government had lapsed in 2003, following which the Congress-led government came up with a new draft. The view of the Law Commission was also sought and it made a list of recommendations in its 195th report that was finalised in January. Now, the government is giving a push to the Bill that’s long been in the pipeline.

But the Bill has already run into rough weather. First and foremost, experts feel that there is little wisdom in saddling the judiciary with the task of examining public complaints against judges when they are unable to clear a backlog of an estimated 32 million cases. This problem has been voiced by legal luminaries such as Ram Jethmalani, who as a senior advocate and member of the parliamentary standing committee on law and justice, had noted in his dissent note on the Bill: “The National Judicial Council will be so flooded that judges will have to abandon their normal judicial work and devote (themselves) full time to the disposal of complaints”.

Others tend to believe that such a Bill may be misused. Executive chairman, Legal Aid Services, Geetanath Ganguly, fears that a person who has a case in court may file a complaint against a judge if he or she apprehends an unfavourable verdict. “In a democracy, accountability is essential. But in an adversarial system of justice like ours, people — if they feel that a judgment would go against them — could easily register a complaint to ensure that the judge in question does not hear that particular case.”

The retired judge adds that the mechanism of the Bill being translated into law needs to be “carefully considered”. Also, some sections feel that while bringing accountability to the judicial system is an important part of the Constitution, India works on the “separation of power” principle and getting the legislature to question the judiciary might not be the best option available.

Some experts, however, are of the firm belief that the country needs a Bill of this kind. Delhi-based advocate Nitin Goel stresses that judges have to be made accountable. “So, if it means an increase in the backlog of cases, then so be it. There are other ways to counter the backlog. One way to do that is to ensure that judges conduct the hearings professionally and not allow unnecessary adjournments. This can easily be done if we record all court proceedings on video and give the public access to the proceedings over the Net. The public and the media can then monitor every judge’s performance.”

Anuroop Singhi, an advocate with Singhi & Singhi, Advocates and Consultants, Rajasthan, agrees. “When we ourselves are making the common man aware about his rights, then litigation is bound to increase. The only way to ensure the speedy disposal of cases is to increase the number of judges, but that is another story.”

“With this Bill, there is still a fighting chance of getting justice,” says Ratnabali Ray, founder of Anjali (a mental health NGO in Calcutta), who has to encounter legal issues.

There are other interesting aspects that this draft law proposes. It envisages punishment for an errant judge, such as ordering him to quit, on the basis of complaints filed by the public. While the parliamentary committee, which submitted its report last August, has backed the punitive aspect of the Bill, it has rejected the concept that only judges should become members of the NJC that will probe complaints against a judge. The committee recommended that the council be widened by including members of the Bar and the government. The government may take some of its recommendations into consideration while enacting the law.

“Modalities should be clearly etched out and a wider body should be made responsible for looking into allegations since, on the flip side, there’s always the danger of a trial by the media,” says Ganguly. “In a news-starved media, any whiff of a complaint against a sitting judge would provide fodder for an extensive coverage. This would lessen the dignity of the judiciary in the eyes of the public.”

The NJC is slated to conduct an inquiry in camera. It shall be completed within six months, which could be extended by a further six months. If requested by the NJC, the central government may appoint an advocate to conduct the case against a judge. The NJC may impose minor measures against judges if charges against them are proved, but the council doesn’t think they need to be removed from their posts. Minor measures include issuing advisories and warnings, withdrawal of judicial work for a limited time, request to the judge to voluntarily retire, and public or private censure or admonition.

The Bill also lays down that “the incapacity of a judge will be judged by (a) the Chief Justice of India — chairperson; (b) two senior most judges of the Supreme Court, to be nominated by the Chief Justice of India — members; (c) two chief justices of the high courts, to be nominated by the Chief Justice of India — members”.

However, as Singhi puts it, “Incapacity should be judged only at the time of the appointment and should not be judged after the appointment because it is a subjective aspect. Any person who is aggrieved by an order passed by any judge can file a complaint. So, the procedure of making complaints should be stringent. But even then, keeping a committee free of any bias will be a difficult task.”

Ray agrees that “this Bill runs the risk of misuse”, but the draft law seeks to protect judges from a witch-hunt or unnecessary victimisation. The Bill allows a judge to appeal his removal before the Supreme Court after impeachment. Also in all these years, there has been only one case in which a judge — Justice Ramaswami of the Supreme Court — has been investigated for misconduct under the Judges (Inquiry) Act, 1968. This is held up as evidence enough that setting a rule doesn’t mean there will be misuse. However, the standing committee has observed that this could undermine the finality of a presidential order that should not be challenged in any case.

It will be a while before the Bill finally is enacted. But with a country full of “argumentative Indians”, the time to “question our judges” has finally arrived.