In our previous article, we explained about how Judges in India have never been accountable for their acts. In this Article, we shall compare the judicial accountability of the judges in India with UK and USA.
In India, a judge can be removed only through a motion in parliament, which must have a minimum of two-thirds support in each House. The motion itself can be brought in either house of parliament only with the support of a requisite number of parliamentarians. If the motion is admitted, an inquiry committee is set up, comprising a Supreme Court judge, a high court chief justice and an eminent jurist. The inquiry committee examines the charges. It is not a trial, but the judge can provide a written response and examine witnesses. The committee submits its report to parliament on whether the charges can stand or not. If the committee holds the judge not guilty, the process ends there. If the inquiry committee finds the judge guilty, the motion for removal must be put to vote in both houses of parliament. The judge has the right to be represented. To be successful, the motion must be supported by a majority of the total membership of that house and by a majority of not less than two-thirds of members present and voting. If these hurdles are crossed, parliament asks the president of India for the judge’s removal.
It can be seen that the constitutional provision in India for the removal of a Supreme Court judge is modelled on the English provision, it is more rigid in so far as (i) it requires a special majority in both the Houses; in England no special majority is prescribed; (ii) while in India the grounds have been specified on which an address for the removal of a judge can be presented, there is no such provision in England; (iii) in India, there is provision for investigation into the allegations before presenting an address, no such provision exists in England. Therefore, it appears that the provision in England for the removal of judges is more flexible than that in India.
As far as minor misconduct of judges is concerned, in UK the Constitutional Reforms Act, 2005, creates an Office of Judicial Complaints, which receives complaints about judges. The Office of Judicial Complaints investigates complaints from members of the public, litigants, professionals (or on referral by the Lord Chancellor or Lord Chief Justice) about judicial conduct that falls within its limit. In addition to the creation of formal mechanisms for dealing with and overseeing complaints and discipline in Constitutional Reforms Act, the Guide to Judicial Conduct was adopted. It is on intended to offer assistance to judges rather than to prescribe a detailed code and to set up principles.
In United States, historically, impeachment is the only method of removing a federal judge from office. As there was no procedure for disciplining federal judges, other than impeachment process, the Judicial Councils Reform and Judicial Conduct and Disability Act, 1980 (herein after called the Act) was enacted. The stated goal of the Act was to improve judicial accountability. Under the Act the Judicial Conference and Judicial Councils were established to discipline the judges. Under this Act any person may file a complaint alleging that a judge or magistrate, excluding Supreme Court Justices, is engaged in conduct inconsistent with ‘the effective and expeditious administration of the business of the courts.’
The vast majority of states in United States still permit removal by impeachment, and some additionally still allow joint address, but several other states now permit removal by recall election and by judicial – conduct commissions. Like the federal judicial councils, states have adopted similar disciplinary procedure for accountability of judges. California took the first major step in this direction and created the Commission on Judicial Performance. The Commission on Judicial Performance imposes democratic public accountability upon the judiciary, for various allegations.
When compared to UK and USA, in India there is no institutionalized mechanism to deal with the minor misconduct of judges of the higher judiciary. The working of the judicial accountability mechanism in UK and USA is far better when compared with Indian system. It is also worth to note that in UK and USA (both at federal and state levels) the regime ensuring judicial accountability is updated from time to time. It is desirable that India emulate this proven process and enact a law for regulating minor misconduct of judges at the earliest and make judicial accountability effective.
