One of the demands of the Anna Hazare campaign was to bring judges, especially the higher judiciary, under the purview of the Lokpal. Mercifully, that demand was rejected. The option that is now being explored to bring some accountability in the judiciary is through the Judicial Standards and Accountability Bill, 2010. It is an effort worth pursuing but one that requires careful handling.
In any such measure the key objective ought to be to maintain the balance between judicial independence and accountability.
This is a difficult task. This was one reason why the procedure to remove senior judges is cumbersome. Impeachment, it’s often held, is now a near- obsolete procedure as ensuring majorities in Parliament to remove a judge is hard in the age of coalitions. The proceedings against justice Soumitra Sen show this is not true. If Parliament has the requisite will, it will find a way. Because this procedure is political, it is all the more important that great care be taken to frame the law. For it is easy to destroy judicial independence by scaring sitting judges with abrasive procedures.
In the Bill introduced in the Lok Sabha last year, two important parts are the Complaints Scrutiny Panel (CSP) and the National Judicial Oversight Committee. The CSP under the Bill, at the moment, will comprise judges only. Their findings are to be passed to the oversight panel. There are demands that the CSP include non-judicial members—parliamentarians, for example—to lend “credibility” to it.
There is no need to do so. For one, the CSP’s proceedings are likely to be technical in nature. And if preliminary investigation finds evidence of wrongdoing, the matter has to be reported to the oversight committee. The latter, in any case, has non-judicial members, including an eminent person nominated by the President. The final step towards removal has to be taken by Parliament, giving ample scope of debate, discussion and analysis at that forum. To demand that CSP has other members is more a political fashion and less a useful device.
Separation of powers and respect between different wings of the state is essential for democracy. Politicians should eschew the wish to have a say at every stage of the removal of judges.
How should errant judges be removed? Tell us at firstname.lastname@example.org