Unjustified conflict

Each society or system has its own revered myths. In democracies based on the principle of separation of powers, the incorruptibility of the judiciary is one such. But to err is human and, as the Prime Minister gently pointed out at the all-India Conference of Chief Ministers and Chief Justices, some judges may not be above temptation""either of lucre or comfort or higher office. However, the principle of separation of powers requires that the physicians must heal themselves and, failing that, at least not be accountable to the executive. So most "good" constitutions make sure that, in order to maintain the independence of the judiciary from the executive, the power to punish errant judges is vested in the legislature.

India also follows this precept. The result is that it is not easy to punish judges who betray their oaths. Indeed, not a single judge has ever been impeached although in one instance it came pretty close. This has led to some disquiet, because there is a growing sense that it should be possible to have a system of accountability and punishment that does not consist of "impeachment or nothing". It is perhaps to address that problem that the government wants to introduce a Bill that will make it possible for citizens to complain against judges and make them accountable to a council consisting of the Chief Justice and four or two senior judges. The council can investigate the complaint and mete out lesser punishment than impeachment. "We will bring in a Bill. The world over, judges are accountable. Why should they be left out in India," Mr K Venkatapathy, the minister of state for law and justice, told a TV station.

The Bill gives the council the power to investigate judges and act against them. It can, if necessary, search and seize documents and seek the assistance of any official agency. It can also withdraw judicial work from the judges under investigation, retire them or publicly admonish them. To ensure that there are no frivolous complaints, the Bill provides for a penalty of Rs 25,000 and a jail term of one year. Both seem insufficient. But, if passed, the new law will at least help in getting out of the "all-or-nothing" problem. That is its chief merit.

At the same conference the Prime Minister also voiced a complaint against "judicial activism" and public interest litigation. About the latter, he said that it had "become a tool for obstruction, delay and sometimes even harassment". About the former he said "judicial activism too must be used in a restrained manner". This is ironic, since the practice can be traced back to the Congress party appointing activist judges in the 1970s after some of its "progressive" legislation and executive actions had been struck down by the Supreme Court as being unconstitutional. What is progressive when it suits the government can become activism when it doesn't. So it is necessary to be careful. On balance, the Indian judiciary has rendered tremendous service to the citizen by standing between him and an uncaring executive. Since Parliament has also been complaining about it, it is essential that, under the guise of reforming the judiciary, the executive and the legislature don't gang up against it for their own narrow ends.