There are a number of conceptual issues in the Bill that need to be addressed. These are: (i) who should be judging the misbehaviour or incapacity of judges; (ii) whether an impeachment by Parliament of a judge should be open to appeal; (iii) what should be the procedure of making complaints against judges; and (iv) the constitutional validity of the Bill. These four, as well other issues, are discussed below.

Judging the judges

The Supreme Court has, in several decisions, analysed issues relating to appointment and oversight of judges solely by the judiciary. The 67th Constitutional (Amendment) Bill, 1990 proposed the creation a National Judicial Commission composed of serving judges headed by the CJI for judicial appointments. The Bill was not passed but the Supreme Court mandated the creation of such a commission in a 1993 decision which stated that the President had to consult the serving judiciary alone in appointing judges. [4] In the Ramaswami case, the Supreme Court held that any body investigating the judicial conduct should be predominantly composed of the judiciary. [5] In 1997, the Supreme Court passed two resolutions establishing in-house procedures for examining any complaints against a judge, and adopting "The Restatement of Values of Judicial Life" against which judicial conduct would be measured. The decision that only judges would oversee judicial appointments was upheld in another Supreme Court decision in 1998. [6]

An expert paper was written for the NAC on a proposed National Judicial Commission to oversee both the appointment and oversight of judges. It stated that the Commission proposed by the 67th Amendment was "dominated by the judiciary whereas most functioning commissions in other parts of the world are dominated by members of appointees of the legislative and executive branches". [2] It suggested a National Judicial Commission composed of the members from the legislature, the judiciary and the executive whose decisions would be binding on the President (this would require amendments to the Constitution).

The Standing Committee, while deliberating on this Bill, stated that there was a "general consensus among the Committee Members that the proposed judicially exclusive composition of the National Judicial Council 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 were investigated by the NJC.

Table 1: Suggested judicial oversight bodies in India

The basic features of some judicial oversight bodies in other countries are summarised in Table 2.

Table 2: Judicial Oversight Bodies in Some Countries

Appeal to the Supreme Court after Impeachment

In a 1992 ruling, the Supreme Court had held that the Inquiry Committee under the Judges Inquiry Act, 1968 was only an investigative body, and that the question for judicial review would arise only after an impeachment motion was passed by the Parliament. [8] The Law Commission quoted this judgment and determined that the remedy of judicial review cannot be ousted because it is part of the "basic structure of the Constitution and cannot be removed even by constitutional amendment". The Law Commission recommended an appeal process, whereby a Judge would have the right to appeal to the Supreme Court against both minor measures imposed by the NJC, or an order for his removal from the President pursuant to an impeachment motion in the Parliament.

The Standing Committee has recommended against including any provision for appeal after a removal order has been passed by the President following an impeachment motion in the Parliament. The Committee said that constitutionally mandated due process is inherent in the process for removal, and any appeal would amount to an action against the constitutional authority of the President and was unwarranted. With regard to appeals against minor measures, the Standing Committee stated that the judiciary has the inherent power to review in cases of apparent injustice, and that a specific appeal process was not necessary in the Bill.

Complaints Procedure

In the Ramaswami case, the Supreme Court had cited that the provision of proving the misbehaviour or incapacity of a judge was separate from that of his impeachment, and thus Article 124(4) of the Constitution was a judicious mix of both legislative and judicial functions. The Law Commission cited this to clarify that complaints could come from outside of the Parliament because that was part of the judicial function, which was informational. It cited similar cases that had been decided in the US and Canada, in which it was ruled that the legislature could delegate such functions to a judicial council. [9]

In respect of the Bill providing for complaints from "any person", the Standing Committee cautioned against an "open system of complaints by any person" subjecting judges to both genuine and frivolous complaints. The Committee contrasted this with the Parliamentary reference procedure in the Bill where a stipulated number of MPs is required to support a motion for a judge's removal before it was referred to the NJC, and observed that "an individual is being equated with 100 MPs of Lok Sabha and 50 MPs of Rajya Sabha for making a complaint against a judge." The Standing Committee therefore recommended that an impartial Empowered Committee, comprising of members from the legislature, executive, judiciary and the Bar should be created to screen complaints, and recommend which ones need to be investigated by the NJC.

Constitutional Validity

Articles 124 and 218 of the Constitution deal with the removal of judges in cases of proved misbehaviour or incapacity but contain no provisions for any other form of disciplining. The Judges (Inquiry) Act, 1968 only dealt with provisions for inquiry against a judge and his removal for proved misbehaviour or incapacity. In the Ramaswami case, the then CJI had advised Justice Ramaswami against doing any judicial work until the investigation was over and appointed a committee to determine whether the allegations made it infeasible for Justice Ramaswami to act as judge. The committee said that, "(only if) upon a careful analysis of all the material, the appropriate authorities find facts from which an inference of moral turpitude becomes inescapable and if the Chief Justice of India agrees that those assessments are bona fide and the facts proved reasonably justify or admit of such inferences, then and then alone, could it be said that it will be an embarrassment for the Judge to discharge judicial functions." Consequently Justice Ramaswami was allowed to resume his duties.

In 1995, in a case involving a former Chief Justice of the Bombay High Court, the Supreme Court had held that, "the yawning gap between proved misbehaviour and bad conduct inconsistent with the high office on the part of a non-cooperating judge / Chief Justice of a High Court could be disciplined by self-regulation through in-house procedure. This in-house procedure would fill in the constitutional gap." In a previous case a former Chief Justice of the Bombay High Court had halted the assignment of work to four judges of the Bombay High Court after allegations of misbehaviour against the judges. [10]

The Law Commission stated that the NJC should be enabled to impose minor measures against the judge if he was found guilty and the offence did not warrant removal. It stated that the United States and Canada have established minor measures to discipline judges despite having no such clause in their Constitutions. The US Supreme Court has upheld the constitutionality of such measures reasoning that it was permissible for the judiciary to regulate itself and set its own house in order. [11]

The Standing Committee felt that the Bill did not need a constitutional amendment but nevertheless it stated that "the issue of Constitutional validity of this Bill be thoroughly examined once again before proceeding further with the Bill because many witnesses including jurists were of the opinion that this Bill will not withstand constitutional validity in its present form". It also said that requesting a judge to voluntarily retire was a process of removal and should not be included as a "minor measure", as proposed in the Bill.

Closed process

Differences from Law Commission Recommendations

The Law Commission recommended a number of changes to the 2005 draft Bill, all of which were accepted except for two. First, it stated that any misbehaviour committed up to two years before the Act was passed could be investigated. The Law Commission reasoned that such a retrospective action would not violate Article 20 (1) of the Constitution (which prohibits conviction of an offence unless it was a violation of the law at the time of its commission) as misbehaviour is not treated as an "offence", nor does the Bill create a new type of offence. The Bill only permits complaints about actions committed after its enactment. Second, both the 2005 draft Bill and the Law Commission stated that if the case was against a High Court judge, the CJI shall nominate the two senior most High Court Chief Justices to the NJC. The new Bill does not contain the words "senior most", leaving the choice of nomination to the CJI.

Disclosure of assets

The Bill does not specify whether the details of assets disclosed annually by judges to the respective Chief Justice shall be made public. Pursuant to a Supreme Court judgement, [14] all candidates for elections to Parliament or state legislatures have to declare their assets, and their disclosures are made public. In the US, all judicial officers are required to disclose their assets and income. [15]