The chief justice of India SH Kapadia’s comments on the independence of the judiciary and its accountability in a system of checks and balances are significant in the context of the discussion on the Judicial Standards and Accountability bill which is before the Rajya Sabha now. The Lok Sabha has passed the bill and the Upper House is yet to take it up. The need for the bill, which replaces the Judges Inquiry Act, has been well accepted because it provides a better system to deal with complaints of misconduct or other failings of members of the higher judiciary. The existing system which has nothing short of impeachment proceedings for effective action against an errant judge has been found to be inadequate in practice. The new bill which prescribes less exacting procedures is therefore welcome.
But some provisions of the bill have caused concern in judicial circles and the chief justice may have been giving expression to it. The clause that seeks to prevent judges from making any comments on or criticism of constitutional functionaries, statutory bodies or officials in the form of obiter dicta is seen as a gag order on the judiciary. Many such comments from the bench have helped to put the issues before the court in a better perspective, though some have been controversial too. Banning them altogether may amount to restricting judicial freedom. There is also some disquiet over the provision to have non-judicial members in the oversight committee proposed by the bill. On the other hand, the scrutiny panel which makes a study of the complaint against a judge is proposed to have only members of the same court where the judge functions. This may cast doubts about the credibility of the vetting process. These issues call for more detailed discussions. This is especially important because the Lok Sabha passed the bill earlier this year without a debate.
An important lacuna in the bill is that it is silent on judicial appointments. The present collegium system, evolved by the Supreme Court, has been criticised for its lack of transparency. The setting up of an independent commission has often been suggested for selection of judges. This may call for separate legislation and should be considered. The government has said that it is ready to make changes in order to make the bill more effective and acceptable. This will not be difficult if judicial independence and accountability are considered interdependent, as the chief justice indicated.