The issue of conduct and accountability of judges is again making headlines. Under our current system, all subordinate judges are governed by and accountable to the respective high courts. For the higher judiciary, the only disciplinary action allowed against a judge is that of impeachment.

This paper carried an op-ed describing how judges can be removed from office, and the proposed bill that modifies this process. Four significant changes are being proposed in the Judges (Inquiry) Bill, 2006. First, any person may complain against a Supreme Court or high court judge; currently, 100 Lok Sabha MPs or 50 Rajya Sabha MPs are required to initiate the process. Second, the bill proposes a National Judicial Council (NJC) consisting of Supreme Court and high court Judges to conduct an inquiry . Third, it provides for minor measures such as issuing advisories and warnings, withholding work, asking the judge to resign, and censuring privately or publicly. Fourth, it allows the judge to appeal to the Supreme Court against the finding of the NJC and even against the final order of removal.

There are four conceptual issues that need to be addressed by Parliament. First, who judges the judges? Opinion on this is divided. The Supreme Court has held several times that judicial accountability should be enforced by the judiciary itself. It has also ruled that the president has to heed the advice of the serving judiciary while appointing judges. The law commission in its 195th report stated that the judiciary must be held accountable, but that the oversight should be with a committee consisting solely of the serving judiciary. It argued that this is the norm on the independence of the judiciary. However, the standing committee while examining this bill stated that the composition of the proposed NJC “is not in consonance with the principle of accountability.” It stated that either the NJC should be expanded to include non-judicial members representing the legislature and the executive or alternatively, an empowered committee, with members from the judiciary, executive, legislature and the bar, should be set up to screen complaints before they are investigated by the NJC. International practice also varies: Canada, US and Germany have only judges in the investigating bodies whereas England, Wales and South Africa include lay persons.

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