The Judicial Standards and Accountability Bill tries to lay down enforceable standards of conduct for judges. It also requires judges to declare details of their and their family members' assets and liabilities. It creates mechanisms and procedures to allow anyone to complain against judges on grounds of their misbehaviour or incapacity in performance of duties. Hence it is regarded as an overreach of executive into judicial mechanisms. Currently all complaints against judges are investigated by other judges of higher courts.
The Judicial Standards and Accountability Bill, 2010 requires judges to declare their assets, lays down judicial standards, and it also establishes processes for removal of judges of the Supreme Court and High Courts.
Judges will be required to declare their assets and liabilities, and also that of their spouses and children. This shall ensure that illgotten wealth is exposed
The Bill establishes the National Judicial Oversight Committee, the Complaints Scrutiny Panel and an investigation committee. Any person can make a complaint against a judge to the Oversight Committee on grounds of ‘misbehaviour’. Currently any action against a sitting judge of SC or HC is taken by Parliament only. If adequate number of legislators can pass a motion an inquiry committee is setup for investigation. This committee consists of a SC judge, Chief justice of the High court to which the judge belongs and an eminent jurist. If this panel finds the judge guilty only then by a special majority in both houses can he be removed by the President.
A motion for removal of a judge on grounds of misbehaviour can also be moved in Parliament. Such a motion will be referred for further inquiry to the Oversight Committee.
Complaints and inquiries against judges will be confidential and frivolous complaints will be penalised.
The Oversight Committee may issue advisories or warnings to judges, and also recommend their removal to the President.
The balance between independence and accountability is maintained by the proposed mechanism in the Bill or not. The Oversight Committee has non-judicial members which might impinge on the independence of the judiciary.
The Bill penalises anyone who breaches the confidentiality of complaints. It is questionable whether a penalty is needed for a frivolous complaint that remains confidential. An excessive penalty may dissuade even genuine complainants
The Scrutiny Panel has judges from the same High Court. This is different from the in-house procedure of the Supreme Court.
The Oversight Committee has non-judicial members. The procedure of the Committee is not an in-house procedure of the judiciary. It is not clear whether the power of the Oversight Committee to impose minor measures is constitutionally valid.
The Bill does not mention whether a judge has the right to appeal to the Supreme Court against an order of removal issued by the President after Parliament finds him guilty of ‘misbehaviour’.
National Judicial Oversight Committee: will consist of a retired Chief Justice of India as the Chairperson, a judge of the Supreme Cour t, a Chief Justice of the High Court, the Attorney General for India, and an eminent person appointed by the President. The Oversight Committee shall have supervisory powers regarding investigation into complaints against judges, and also the power to impose minor measures.
Scrutiny Panel: will be constituted in the Supreme Cour t and every High Court. It shall consist of a former Chief Justice and two sitting judges of that cour t. The Panel shall conduct an initial investigation into the merits of a complaint made against a judge. It shall also have the power to report frivolous or vexatious complaints. Persons making frivolous or vexatious complaints can be penalised by rigorous imprisonment of up to five years and fine of up to five lakh rupees.
Investigation Committee: will be set up by Oversight Committee to enquire into complaints. The investigation committee will be set up if the Scrutiny Pa nel recommends that an inquiry should be carried out to investigate a complaint. The Bill does not specify the qualifications of members of the investigation committee, but leaves this to the discretion of the Oversight Committee.