“Transparency in judicial selection and judicial accountability is the least, the people demand and accept”                                                                                                                                                                                                                                        

                                                                                                                          -Palak Khare

INTRODUCTION

The birth of the Indian constitution laid the separation of power between the legislature, executive and judiciary. The legislature and executive being the focused organ when it comes to accountability and transparency, the judiciary being regarded as the ultimate mainspring of justice never came into limelight. In a democratic setup, like India, where all the three organs play their roles jointly and severally, judiciary must not be excepted because Indian judiciary acts as guardian and protector of fundamental rights of the people. The common man puts his immense faith on the judicial system for his injured legal and moral rights. But due to the abuse of power and corruption, “values in the judiciary, from lower courts to Supreme Court are sliding and people are losing faith in the system.”[1]Therefore there is the pressing demand for greater institutional accountability in the Indian judiciary to thwart the decline in the standard of judges. Even the judges should be kept under the purview of scrutiny. Hence, the Judicial Standards and Accountability Bill, 2010 was introduced in the parliament which aims to increase accountability of the higher judiciary in India. The bill tries to lay down judicial standards, the procedure of removal of judges of Supreme Court and High Court and most importantly require the judges as well as their spouse and children to declare their assets.

Then, the other issue which became the need of the hour is a felicitous procedure of selection of the judges. “Opaqueness has been prevailing over the selection of judges in High Courts and Supreme Courts for the past two decades. There have been widespread allegations that relatives of judges were favored and promoted, instead of the deserving candidates”[2]There had been a prolonged tussle between the three organs for the selection of judges to the Supreme Court and high courts. To relax this tussle, the National Judicial Appointments Commission Bill, 2014 was introduced in the Lok Sabha on August 11, 2014 by the Minister of Law and Justice, Mr. Ravi Shankar Prasad. The Bill is also known as the 121^st  Constitutional Amendment Bill, 2014.This bill became National Judicial Appointments Commission Act,2014.This Act establishes the National Judicial Appointments Commission (NJAC) which contains the provisions regarding vacancies, procedure to be followed for selection of Supreme Court and High court judges and transfer issues.

 THE JUDICIAL STANDARDS AND ACCOUNTABILTY BILL, 2010

Accountability and transparency are the fundamentals of the democratic form of government. To be accountable is, to be reasonable, answerable and to take responsibility of one’s own function not to oneself but to some other external body.  Article 235 of the Indian Constitution talks about control over subordinate court that is lower courts are accountable to the high court of their respective states and on the other hand also enjoys the privileges to work independently away from the interference of any other organ or institution of the government[3].But in the higher judiciary there is no such provision they are independent and not accountable to anyone .The only way through which higher judiciary is accountable  is through the Impeachment under Article124(4) of the Indian constitution states that “ a judge of the supreme court shall not be removed from his office except by an order of the president passed by each house of parliament supported by a majority of the total membership of that house and by a majority of not less than two –third of the members of the house present and voting has been presented to the president in the same session for such removal on the ground of proved misbehavior and incapacity. ”[4]But this procedure is so complicated to be followed and therefore to fill up this lacuna a need arises for urgent enactment of provisions through which the higher judiciary should be made accountable, like all other organs of the government.

The Judicial Standard and Accountability Bill was introduced in parliament to bring accountability and transparency and laid down standard for the higher judiciary. The present bill replaces the Judges Inquiry Act, 1968. The judiciary claims that any outside body having disciplinary power over them who compromise their independence so they have set up an in-house mechanism   for investigating corruption this was proposed by the Judges Inquiry Act Amendment Bill, 2006.[5] The main purpose of this bill is to constitute a mechanism which would enquire into the acts of misbehavior and incapacity of the judges of the Supreme Court and high courts.[6]The problem which arises in this in-house procedure is that the judges regarded themselves as close brotherhood and therefore are unwilling to take any step against them. What is objectionable is that section 33 which says that not to disclose any information relating to the complaint to any person in any proceeding except when directed by council. This will make it impossible to publicize the charges. The only positive feature of this bill is that it initiates an inquiry against the allegation of misconduct of a judge. [7]

Key features of the bill- [8]

• This bill replaces the Judges (Inquiry) Act, 1968

           It seeks[9]–

• to lay down judicial standards and to provide for accountability of the Judges
• to establish credible and expedient mechanism for investigating into individual complaints for misbehavior or incapacity of a Judge of the Supreme Court or of a High Court
• to regulate the procedure for such investigation
• for providing of the presentation of an address by the Parliament to the President of India for removal of a Judge, and
• To provide for connected or incidental matters.

Judicial standard: – The bill set out the certain standard of conduct, under chapter II which should be followed by the judges. This clauses have been derived from a full bench meeting in the Supreme Court on 7^th may, 1997 entitled Reinstatement of Values of Judicial Life.[10] The grounds on which complaints can be made against the judges are non-compliance with the standard mentioned under chapter II of this bill, other activities such as corruption, willful abuse of power persistent failure to perform duties.

Judicial Accountability:-To make judiciary accountable the provisions inserted by the judiciary are as follows-

• Under chapter IV section 4 judges shall be made declaration of his assets and liabilities and also that of their spouse and dependent children of which they are jointly or severally, owner and beneficiaries.
• Under chapter V and VI of the bill three committees are established namely National Judicial Oversight Committee, Scrutiny Panel Committee, and Investigation Committee .Under section 7 any person can make a complaint against any judge on the ground their misbehavior and incapacity to the over sight committee.
• Under section 33 the oversight committee may recommend stoppage of assigning judicial work to the concerned judge in the interest of fair and impartial scrutiny of complaint.
• Under section 29 inquiries shall be conducted in camera and the investigation committee shall complete the inquiry within a period of six months from the date of receipt of complaint and the further extension of six months can be given by the oversight committee.
• Under section 53, if any complaint found to be frivolous or vexatious or made with the intent to scandalize or intimidate the judge then such person shall be punishable with simple imprisonment which may extend to one year and also with fine which may extend to 50,000 thousand rupees.

 Loopholes in the present bill:-

• The documents and records of proceeding related to complaint are exempted from the purview of Right to Information Act 2005; only the report of investigation and the order of oversight shall be made public.
• The bill fails to have any provision regarding the appeal to the Supreme Court that is whether the judge concerned having right to appeal to the Supreme Court against the order of the removal issued by the president after parliament finds him guilty of misbehavior.

THE NATIONAL JUDICIAL APPOINTMENTS COMMISSION ACT, 2014

There is a broad perception among most stakeholders that the present collegium system has not performed well and needs radical change. The controversial collegium system came into existence mainly by three significant cases i.e., S. P. Gupta v. Union of India – 1981 (also known as the Judges’ Transfer case) which declared that the “primacy” of the CJI’s recommendation on judicial appointments and transfers can be refused for “cogent reasons.” The ruling gave the Executive primacy over the Judiciary in judicial appointments for the next 12 years, Supreme Court Advocates-on Record Association vs. Union of India – 1993(also known as the second judges case) in which the majority verdict gave back CJI’s power over judicial appointments and transfers. It says the CJI only need to consult two senior-most judges. “The role of the CJI is primal in nature because this being a topic within the judicial family, the Executive cannot have an equal say in the matter,” the verdict reasoned. The President is reduced to only an approver. Lastly, Special Reference case of 1998 or the Three Judges Case (October 28, 1998)which on a reference from former President K.R. Narayanan, the Supreme Court laid down that the CJIs should consult with a plurality of four senior-most Supreme Court judges to form his opinion on judicial appointments and transfers.[11]But, the worrying concerns continued relating to appointment of unsuitable candidates and selection based on favouritism and nepotism, influential connections and personal likes and dislikes.[12]Considering such flaws, the Law Ministry in 2014 sought to put an end to the collegium system of judges appointing judges. So, they took a step to make such a body which could bring transparency in judicial appointments.

The National Judicial Appointments Commission Bill, 2014 was introduced by Lok Sabha on11.08.2014. The Constitution amendment bill requires ratification by at least 50 percent of the state legislatures. As many as 16 out of 29 states have already ratified the bill. It was passed by both the houses in August and cleared by the Presidenton 31 December 2014. As the Constitution is the Law of the Land, therefore, the Constitution itself had to be first amended before any such Commission could be put into place. Amendments are made to Articles 124 (2) and 217 (1) of the Constitution that deals with the appointment of judges in the Supreme Court and the High Courts, respectively and some words in other articles are also been substituted. Therefore, new Articles, i.e., Article 124A, 124B and 124C are been inserted in the CONSTITUTION (NINETY-NINTH AMENDMENT) ACT, 2014.  The newly inserted Article 124A and 124B establishes and gives to the National Judicial Appointments Commission constitutional status, while at the same time describes its composition, functions and powers. Through Article 124C, the NJAC Act, confer upon both the Central Government as well as the Commission itself, with rule making power to further define the manner in which appointments are to be made.

The NJAC will now serve as a constitutional body like the Election Commission, Comptroller and Auditor General Etc.The Act holds to put in place the new mechanism to select Supreme Court and High Court judges.The Act will lead to the establishment of the National Judicial Appointments Commission, which will appoint and transfer judges to the Supreme Courts and the 24 High Courts. The headquarters of the Commission shall be at Delhi. As per the amended provisions of the constitution, the Commission’s composition would comprise of the Chief Justice of India who will be the chairperson, and next to him would be two other senior most judges of Supreme court, along with the Union law minister and two other eminent members to be jointly chosen by the Prime Minister, the Law Minister and the Leader of Opposition, one of which is to belong to the category of Scheduled Castes, Scheduled Tribes, Other Backward Classes, minorities or women. [13]

The Commission shall on the basis of ability, merit and any other criterion of suitability will nominate and also recommend persons for the appointment as the Chief Justice of India and other Judges of the Supreme Court and Chief Justices and other Judges of High Courts and for their transfers. Before any nomination of Judges of High Courts, the Chief Justice of the concerned High Court shall consult two senior-most Judges of that High Court and such other Judges and eminent advocates of the High Court. The Commission shall elicit in writing the views of the Governor and the Chief Minister of the State concerned before making such recommendation in such manner as may be specified by regulations. Further, if any two members do not agree, then the Commission shall not make such recommendation. In such a case, the President may ask the Commission to reconsider the recommendation and then make the appointments accordingly. Thus, this Act will provide a significant role for the judiciary, the executive and the eminent persons by being the part of the commission.[14] It will introduce a transparent selection procedure and thereby replace the collegium system of judges choosing judges.

However, there is no doubt the collegium system has developed serious flaws. In direct reference to these flaws, the NJACB, 2014 is littered with words such as “ability” and merit”. The appointment and rejection of judges through the collegium system had been marred by personal preferences and rivalries of those selecting/appointing the judges. Justice Markandey Katju, current Chairperson of the Press Council of India, highlighted elevation of alleged corrupt judge Justice S. Ashok Kumar as a Madras High Court judge under the pressure of the Dravida Munnettra Kazhagam, a Tamil political party and an alliance partner of the previous United Progressive Alliance (UPA) government at the center. If certain Chief Justices had failed to stand up to pressure of the UPA Government, which itself was under pressure from the DMK, for the elevation of Justice S. Ashok Kumar, it is unlikely that in future, members of the National Judicial Appointments Commission shall be able to stand up to any government.[15]This Act will mark the start of the executive encroaching upon the judiciary and will threaten the independence of judiciary.

Thus, though the Act aims at making the judicial selection more transparent but it has to ensure that the members of the commission are accountable and not bias and thereby make such a selection which will not hamper the judicial system.

CONCLUSION

The focus of this article is basically upon how does the National Judicial Appointments Commission Act, 2014 and Judicial Standard and Accountability Bill, 2010 work and how in near future these legislations will help in bringing transparency in the judicial system. As no Act and Bill are without being confronted to debates and contradiction, so they are also facing certain criticism. Many issues are yet not explicit.

So far as the transparency is concerned, as the composition of the National Judicial Appointments Commission Act, 2014 and Judicial Standard and Accountability Bill, 2010 do not solely consists of members of judiciary but also includes the role of executive in the appointments, so this will make higher judiciary more accountable and responsible.

Thus, in the end to give impetus to the duty of higher judiciary and judges, it can be quoted through the words of Justice Sabyasachi Mukherjee, during the controversy regarding the impeachment of Justice V. Ramaswami, stated: “… The Supreme Court must uphold the rule of law. It is, therefore, necessary that those who uphold the rule of law must live by law and Judges must, therefore, be obliged to live according to law ….”[16].

References:-

[1] Kadapa District Justice C.V. Nagarjuna Reddy; http://zeenews.india.com/news/nation/people-losing-confidence-in-judicial-system-legal-experts_838590.html

[2]AkhilBharatheeyaAdhivakthaParishad, National Secretary Adv K SrinivasaMoorthi; http://www.newindianexpress.com/cities/kochi/Judiciary-has-Key-Role-in-Safeguarding-People%E2%80%99s-Faith/2014/08/27/article2400596.ece

[3] http://www.ijlass.org/data/frontImages/gallery/Vol._2_No._7/14.pdf

[4] P.M. Bakshi, The Constitution Of India,Eleventh Edition,2011

[5] http://ccs.in/internship_papers/2011/247_judicial-accountablity-in-india_isha-tirkey.pdf

[6] http://www.pucl.org/Topics/Law/2006/judicial_council.html

[7] http://ccs.in/internship_papers/2011/247_judicial-accountablity-in-india_isha-tirkey.pdf

[8]http://orfonline.org/cms/sites/orfonline/modules/analysis/AnalysisDetail.html?cmaid=31932&mmacmaid=31933

[9] Ibid

[10] https://indialawyers.wordpress.com/2009/11/12/restatement-of-values-of-judicial-life-1999-code-of-judicial-ethics/

[11] http://www.thehindu.com/news/national/the-validity-of-the-collegium-system/article6148870.ece

[12] http://www.thehindu.com/opinion/lead/making-judiciary-more-transparent/article6277602.ece

[13]Reference made from National judicial appointment commission Act,2010

[14]ibid

[15]http://www.achrweb.org/Review/2014/242-14.html

[16] http://www.thehindu.com/opinion/lead/making-judiciary-more-transparent/article6277602.ece

Authors:-

PALAK KHARE (B.A. LLB 4^th year)

SHINI JAIN (B.A. LLB 4^th year) 

Bharati Vidhyapeeth Deemed University, New Law college, Pune