The proposed new Bill to deal with errant judges has evoked strong and different reactions. A large part of the political class and several other quarters think that this is an example of too little, too late. They want a more comprehensive body, dealing not only with so-called minor punishments like censure, warning, withdrawal of work, power to request the judge to retire voluntarily and the like, as the Bill presently proposes, but also the power to remove the judge altogether and not only by way of impeachment.
Second, many quarters want a full-scale commission to deal with the appointment of judges, their transfer and disciplining and not merely the last. Third, there is a strong grievance that the composition of the presently proposed council has to be much more broadbased and not merely comprise a collegium of judges but must have constitutional functionaries (eg Prime Minister, Vice-President, leader of the Opposition, etc.), members of civil society (independent, eminent citizens) and lawyers.
Since the Bill is pending at the Parliamentary Committee stage, this is only the reflection of a personal view. In a nutshell, the Bill creates a five-person National Judicial Council (NJC), comprising the Chief Justice of India (CJI), the two senior most Supreme Court judges and two Chief Justices of High Courts, nominated by the CJI. This composition changes to the CJI and the four senior-most apex court judges, when the complaint is against an apex court judge. When these senior guardians are themselves the accused, other provisions of the Bill provide for their exclusion and substitution by other judges down the line.
The Bill can be examined at two levels. One is the level of stylistic, substantive or procedural amendments to the language and content of the Bill. That is a relatively minor matter. Its main intrusive provision, Clause 20, for instance, permits advisories to be issued. Pray what is the exact meaning, content and scope of this word? It is clearly vague. The same applies to “censure and admonition, public or private”. A chat with a judicial colleague may qualify under this description. Does it have to be on a stage or at a public function to come within the latter description? These ambiguities need clarification and tightening.
But the more important question relates to structural changes — the philosophy of the Bill. One cannot forget that Article 124 of the Constitution provides, in broad terms, for appointment and “removal” of apex court judges (and other provisions, likewise, deal with High Court judges). The threshold and basic issue which policy-makers and critics of the Bill would have to decide is whether they want to insist on a removal power short of constitutionally prescribed impeachment. If they do, then it is clear that it can only be done by a constitutional amendment and not by statute. A statute cannot alter the letter or spirit or substance of Article 124. The sad truth is that the fractured polity and fragmented consensus we live in would make a constitutional amendment an exercise in eternity. The critics would then have defeated even the enactment of lesser measures by linking up the issue with larger issues of removal and merely perpetuated the unsatisfactory status quo of the brahmastra of impeachment.
Second, the critics who call for a broad-based appointment, transfer and removal commission, may well run foul of the two apex court judgments that prescribe a detailed procedure for such appointment. In substance, these judgments (many believe wrongly) have interpreted the word “consultation” in Article 124 to appropriate exclusively to the judiciary, the power of judicial appointments and transfers. Transposing this power to a commission would require at least a constitutional amendment with the attendant difficulties mentioned above.
Third, the demand for a "broadbased" commission with political and other elements external to the judicial family as its members has to be viewed in the context of the larger issue of judicial independence. Such a commission would be nothing more than another mixed collegium. If there is bargaining or pulls and pressures within the judicial fold, it will not only increase manifold but also be more public in such
a commission. Over time, the cherished virtue and value of judicial independence would be undermined. One cannot brush aside the fact that despite warts and all, India remains an unparalleled example of constitutionalism amid the wrecks and ruins of democracy that litter the South Asian (and global) landscape of newly independent nations. To a large measure this is because of fierce judicial independence, despite aberrations at the individual level. Can we afford to risk it with the political and other classes having a direct say in judicial disciplining?
Judicial independence is not only omnipresent in our Constitution (Article 51, for instance), but it has also been held to be part of our constitutional basic structure. Far from touching it by a statute like the proposed Bill or any other statute, we cannot even touch it by a constitutional amendment. Once we approach the present Bill from that perspective, it would have to be appreciated that the Bill has deliberately chosen the middle — not necessarily the perfect — option. It has kept the regulatory powers within the judicial fold, it has changed the unsatisfactory status quo of no control short of impeachment and it seeks to avoid both a constitutional amendment as also a violation of the basic structure. In that perspective, it does not deserve to be ignored or thrown out.
Abhishek Singhvi is MP, Congress National Spokesperson and a Senior Advocate.