CHAPTER 21 (Page No. 319 to 324)

THE NATIONAL JUDICIAL COMMISSION BILL

(Drafted by the Committee on Judicial Accountability)

Statement of Objects & Reasons.

There is the wide spread public perception that the quality of the higher judiciary in the country in general has deteriorated over the last two decades leading to a decline in the quality of administration of justice. Apart from the long delays in the decision of cases, there are also many complaints being heard now about the competence and integrity of judges manning the higher judiciary. It is felt that part of the cause of these problem lies in the present system under the constitution for the appointment and removal of judges. Experience does seem to suggest that the present system of appointments as well as for removal is not appropriate to the needs of the present days, which require that all vacancies will be filled up promptly by the best available men of high integrity. The resent system of appointment by the Executive in consultation with various functionaries has often led to delay in appointments and has offer led to inappropriate appointment being made by an Executive which is ill-suited to judging the merits of prospective appointees. Further, experience has shown that it is inappropriate leave the appointments solely to the Executive when it is essential for the judiciary to be independent of the Executive and also because the Government is the biggest and most important litigant in the superior courts today.

Experience has also shown that the procedure for removal of judges is too cumbersome and impractical to be effective. Further, it is felt that the matter of determining whether a judge is guilty of misbehavior and thus fit for being removed should be left to the professional body rather than to parliament, which is not the appropriate body to decide such question.

It is, therefore, felt necessary, to constitute a high powered national Judicial Commission which will be an eminent body of judicial men who will be entrusted with the task of recommending appointments and removal of judges from the higher judiciary. This body which will be independent of the Executive as well as of the judiciary shall be provided with investigative machinery at its disposal for investigating the antecedents of an for collecting evidence relating to the misbehavior of any judge. It shall have the power to examine and get examined any complaint against judges and in suitable cassettes up Enquirer committees for conducting a full judicial Enquirer into the charges against such judges. It shall have the final power for recommending the removal of the judges after such Enquirer. Likewise its recommendations for appointments will also be final and binding. It is hoped that such high-powered eminent and professional body would make the best possible appointments to the higher judiciary and provide the much-needed accountability in the higher judiciary.

This bill seeks to achieve the aforesaid objects.

THE CONSTITUTION AMENDMENT ACT

An act to further amend the Constitution of India

Be it enacted by Parliament in the Forty-fourth year of the Republic as follows:-

1) Short Title This Act may be called the Constitution Amendment Act 1993.

2) Insertion of Chapter III A

After Chapter III, the following Chapter III A shall be inserted:

Chapter III A

The National Judicial Commission

(1) 123 A (1) There shall be a National Judicial Commission consisting of a chairman and four other members who will be appointed by the President by warrant under his hand and seal.

(2) The Chairman shall be appointed on the recommendation of a collegium consisting of all sitting judges of the Supreme Court. One member of the Commission shall be appointed on the recommendation of a collegium consisting of all the Chief Justices of the High Courts. One member shall be appointed on the recommendation of the Union Cabinet. One member shall be appointed on the recommendation of the Leader of the Opposition in the Lok Sabha who will act in both Houses. One member shall be appointed on the recommendation of a collegium consisting of the Attorney General, the Solicitor General and the Advocates General of all States.

(3) A person shall not be qualified for appointment to the National Judicial Commission unless;

(a) He is at least 55 years of age; and

(i) he is or has been a judge of the Supreme Court or any High Court; or

(ii) he is a senior advocate practicing in the Supreme Court or any High Court.

(4) Each member of the National Judicial Commission shall have a fixed tenure of 5 years, but he shall be eligible for further terms if re-appointed by any of the appointing authorities.

(5) A member of can resign his office by a letter addressed to the president. He shall not be removed from office except on the unanimous recommendation of all the other members of the commission.

(6) The Chairman of the National Judicial Commission will have the status and salary of the Chief Justice of the Supreme Court of India, and its members shall have the rank and salary of the judges of the Supreme Court of India.

(7) The National Judicial Commission will frame its own rules or procedure including that for framing of charges and the inquiry regarding judges of the High Courts and the Supreme Court.

(8) Appointments of the administrative staff including a team of investigators of the National Judicial Commission shall be made by the National Judicial Commission or such person as it may direct. Subject to the provisions of any law made by Parliament, the conditions of service of the staff of the National Judicial Commission shall be such as may be prescribed by rules made by the National Judicial Commission.

Provided that the rules made under this clause shall, so far as they relate to salaries, allowances, leave or pensions require the approval of the President.

(9) The administrative expenses of the staff of the National Judicial Commission including all salaries, allowances and pensions shall be charged upon the Consolidated Fund of India.

(10) The National Judicial Commission shall sit in Delhi or in such other places as the Commission may with the approval the President from time to time appoints.

In place of Article 124, the following shall be substituted:

"124. (1) There shall be a Supreme Court of India consisting of a Chief Justice of India and such number of judges as the National Judicial Commission shall determine from time to time.

(2) Every judge of the Supreme Court shall be appointed by the President by warrant under his hand on the recommendation of the National Judicial Commission and shall hold office until he attains the age of 65 years. The Chief Justice of India shall always be appointed by seniority from among the Judges of the Supreme Court, unless the National Judicial Commission unanimously recommends otherwise. The recommendation of the National Judicial Commission shall be binding on the President.

(3) The National Judicial Commission shall not make its recommendation to the President until at least two weeks after the names of the proposed appointees have been published in the press.

(4) Before making any recommendation for the appointment of a judge tot he Supreme Court, the National Justice of India and four senior most judges of the Supreme Court.

(5) A Judge of the Supreme Court may be writing under his hand addressed to the President resign his office;

(6) If any dispute arises about the age of a judge of the Supreme Court, it shall be determined by the National Judicial Commission whose decision shall be final.

(7) A person shall not be qualified for appointment as a judge of the Supreme Court unless he is a citizen of India and.

(a) has been for at least five years a judge of a High Court of or two or more High Courts in succession; of

(b) has been for at least 15 years an advocate of a High Court or of two or more High Courts in succession; or

(c) is in the opinion of the National Judicial Commission a distinguished jurist.

(8) A judge of the Supreme Court shall not be removed from his office except by an order of President passed on the recommendation of the National Judicial Commission which will be binding on the President.

(9) The National Judicial Commission will not recommend the removal of a judge except on the finding of misbehavior or incapacity arrived at by an Inquiry Commission of 3 sitting or retired judges of the Supreme Court selected by the National Judicial Commission to inquire into charges of misbehavior or incapacity against the judge. The rules of procedure for framing the charges, constituting the Inquiry Committee and the rules of procedure for the Inquiry shall be framed by the National judicial Commission.

(10) A judge shall not discharge judicial functions after the constitution of an Inquiry Committee to inquire into charges of misbehaviour or incapacity against him. He shall resume his judicial functions only after he is exonerated of the charges by the Inquiry Committee.

(11) Every person appointed to be a judge of the Supreme Court shall, before he enters upon his office, make and subscribe before the president, or some person appointed in that behalf by him an oath of affirmation according to the form set out for the purpose in the Schedule.

(12) No person who has held office as a judge of the Supreme Court shall plead or act in any court or before any authority within the territory of India. He shall not be appointed to any office of profit, including a Commission of Inquiry by the government at the Center or any State, except with the approval of the National Judicial Commission.

(13) A judge who has been removed from office on a finding of misbehavior or incapacity will be disqualified from contesting any election to parliament or state legislatures or from holding any public office in the Union or States.

In Article 128 of the Constitution, in place of the words "as the President may appoint for the purpose" the following words may be substituted:- as the President may appoint on the recommendation of the National Judicial Commission.

In place of Article 217, the following should be substituted:

"217 (1) Every judge of the High Court shall be appointed by the President by warrant under his hand on there commendation of the National Judicial Commission and shall hold office until he attains the age of 62 years. The Chief Justice of India shall always be appointed by seniority from among the sitting judges of the High Court, unless the National Judicial Commission unanimously recommends otherwise. The advice of the National Judicial Commission will be binding on the President.

(2) The National Judicial Commission not make the recommendation to the President until at least two weeks after the names of the prospective appointees have been published in the press.

(3) Before making its recommendation he National Judicial Commission shall always consult the Chief Justice of India and four senior most judges of the High Court and the Chief Justice of India.

(4) A judge may by writing under his hand addressed to the President resign his office;

(5) If any dispute arises about the age of a judge of the High Court, it shall be determined by the National Judicial Commission whose decision shall be final.

(6) A person shall not be qualified for appointment as a judge of the High Court unless he is a citizen India and,

(a) has help for at least 10 years judicial office in the territory of India; or

(b) has been for at least 10 years an advocate of a High Court or of two or more High Courts in succession; or

(c) is in the opinion of the National Judicial Commission a distinguished jurist.

(7) A judge shall not be removed from his office except by an order of the president passed on the recommendation of the National Judicial Commission which will be binding on the President.

(8) The National Judicial Commission will not recommend the removal of a judge accept on the finding of misbehaviour or incapacity arrived at by an Inquiry Committee of 3 sitting or retired judges or the Supreme Court or High Court selected by the National Judicial Commission to inquire into charges of procedure for framing the charges, constituting the Inquiry Committee and the rules or procedure for the Inquiry shall be framed by the National Judicial Commission.

(9) A judge shall not discharge judicial functions after the constitution of an inquiry committee to inquire into charges of misbehaviour or incapacity against him. He shall resume his judicial functions only after he is exonerated of the charges by the Inquiry Committee.

In place of article 220, the following will be substituted:

"220. (1) No person who after the commencement of this Constitution has held office as a permanent judge of a High Court shall plead or act in any court or before any authority in India except the Supreme Court and the other High Courts. He shall not be appointed to any office of profit, including a commission of Inquiry by the government, except on the recommendation of the National Judicial Commission.

(2) A judge who has been removed from office on a finding of misbehaviour or incapacity will be disqualified from contesting any election to Parliament or State Legislatures or from holding any public office in the Union or States.

Article 222(1) shall be substituted be transferred from one High Court to another by the president on the recommendation off the National Judicial Commission. Such recommendation will be binding on the President."