Ensuring judicial accountability

THE recent years have witnessed a vigorous debate about the working of our judiciary, including the higher judiciary. At one level, serious charges of corruption, nepotism and acquisition of assets disproportionate to known sources of income have been levelled against some members of the judiciary, raising concerns about the integrity and impartiality of our judicial system and processes. While these have undoubtedly damaged the high regard in which the judiciary is usually held, there is simultaneous appreciation that the judiciary is not only the last bastion for the citizen against state excess, arbitrary behaviour and apathy but also the ultimate guarantor and upholder of the Constitution and democracy. Many recent judgements of both the High Courts and the Supreme Court have enhanced the regard of the judiciary, paving the way for citizen-friendly legislation and protection of human rights. It is increasingly realized that the fearlessness of these judicial pronouncements is predicated on the constitutionally mandated judicial independence from the executive, which should in no instance be undermined.

With a view to examine the issue of judicial accountability, five eminent jurists were interviewed on a range of issues, such as the Judicial Accountability and Standards Bill currently in the Parliament, the contempt of court power, selection of judges and judicial corruption. The jurists are Justice J.S. Verma (former Chief Justice of India), Justice A.P. Shah (former Chief Justice of the Delhi High Court), Justice P.K. Mishra (former Chief Justice of the Patna High Court and presently Chairman, State Human Rights Commission, Goa), Soli Sorabjee (former Attorney General of India) and Anil B. Divan (President, Bar Association of India). Prashanto Sen and Ruchi Gupta conducted the interviews, with assistance from Yug Chaudhry.

 

Do you think that judicial accountability and transparency can be better ensured by legislation or by methods such as involving non-statutory bodies consisting of retired/serving judges, with their own rules and regulations, internal monitoring or any other method? What are your views on the Judicial Accountability and Standards Bill currently in the Parliament?

Justice Verma: Earlier, convention and peer pressure was sufficient. On 7 May 1997, three resolutions were adopted by the Supreme Court, which consisted of restatement of values of judicial life; declaration of assets; and an internal mechanism to enquire into allegations of misbehaviour of judges, which were illustrative but not exhaustive. It was an in-house mechanism for judicial accountability.

I wrote to the prime minister on 1 December 1997 sending all these resolutions, which I felt could form the basis of the required legal framework. However, nothing happened. During my tenure, I had enquiries conducted by Chief Justices of High Courts against a few judges. The adverse findings were re-examined by three senior judges of the Supreme Court who confirmed them. Thereafter, the entire record was sent to the prime minister for further action, but nothing happened. All this showed that since internal mechanisms did not always work, there was a felt need for a law to enforce accountability of erring judges. I stressed the felt need for such a law in the Veeraswami Case in 1991.

Even after retirement, I have continued to highlight the need for a suitable law on the subject. On 7 April 2005, I wrote a letter to the prime minister to this effect. I am given to understand that the Judicial Accountability Bill in the offing was triggered by that letter. The bill is, therefore, a welcome development. However, care must be taken that it provides an effective mechanism to enforce needed accountability of the higher judiciary without eroding judicial independence.

Justice Shah: In pursuance of the judgment in Justice Bhattacharjea’s case, an in-house mechanism was introduced to take remedial action against judges who violate universally accepted values of judicial life. It was felt that such a procedure would serve a dual purpose: maintain judicial independence through the examination of allegations against a judge by his peers and not an outside agency; second, preserve the faith of the people in the independence and impartiality of the judiciary by providing a machinery for examination of complaints against judges. However, the in-house mechanism is inherently weak – the only two punitive actions are withdrawal of work and transfer of the judge. In the Nirmal Yadav case, no action was taken by the then CJI despite indictment by an inquiry committee. Moreover, the Supreme Court has held that this in-house mechanism lacks legal sanctity.

Therefore, the legislative initiative in the shape of the Judicial Standards and Accountability Bill is welcome; however, there are serious lacunae in the bill. (For a critique and suggested changes, please see note on Judicial Accountability and Standards Bill by Justice Shah and Venkatesh Nayak; http://righttoinformation.info/wp-content/uploads/2011/07/NCPRI-Note-on-Judicial-Accountability-and-Standards-Bill1.doc)

Justice Mishra: Apart from the systemic frameworks indicated in the question, a vigilant bar also needs to play a proactive role in effecting better appointments and challenging corruption. In principle, legislation on judicial accountability and standards is a welcome measure, but the present bill pending in Parliament leaves much to be desired.

Soli Sorabjee: Legislation is advisable for a permanent Judicial Council consisting exclusively of judges and one eminent jurist or eminent personality. The council should consist of retired judges whose reputation for independence and integrity is unquestionable. The appointments to the council should be made in consultation with the Chief Justice of India. The possibility of having sitting judges of the Supreme Court in this council may also be considered.

The council would look into complaints of misbehaviour of judges. The term ‘misbehaviour’ should not be rigidly defined and must be an inclusive definition, i.e. a definition where it is possible to add various categories of misbehaviour as they become apparent.

There should be provision of proper infrastructure for the council. It should have the capacity and power to obtain any information that is required. The findings of the Judicial Council should be accepted unless there are cogent reasons for not doing so. The findings should form the basis for the removal of the judge.

The bill should be simplified along the lines of the Judicial Council suggested above instead of having various committees as envisaged in the bill.

Anil B. Divan: The impeachment process has failed. Constitutional amendment would be the best way forward. A National Judicial Commission having two wings, one for appointment and another for complaints, should be put in place. It should be a permanent body with permanent staff, and complete infrastructure for collection of relevant material on prospective candidates. There is currently no internal monitoring system in place. In fact, the CJIs have complained that they have no power, even of suspension, or not assigning work. The case of Dinakaran J. is a case in point. In spite of serious charges, he continued to discharge judicial functions.

The accountability bill suffers from many substantial defects, and in its present form will not be effective. It seeks to unduly penalize complainants. It involves several committees of sitting judges who would have no time to look into the issues. Again, it would be ad hoc and questions of conflict of interest will arise if judges from the same court are involved. In fact, the present system is preferable to the system envisaged under the bill.

 

Do you know of instances where contempt of court power (criminal) has been used to silence opposition, criticism or dissent? Should criminal contempt of court power be retained, abolished or modified. If so, how?

Justice Verma: Power should be retained to uphold the majesty of law and not stifle fair comment or criticism of individual judges. Amendment to the Contempt Act providing defence of truth as justification for the alleged contempt is welcome. However, the defence, instead of being permitted only with the leave of the court, should be available subject only to the court’s power to strike it out if frivolous or vexatious on the same lines as provided in Order VI, Rule 16 of the CPC (Criminal Procedure Code).

Justice Shah: The editor of Lok Satta, Madhav Gadkari wrote an article which was critical of some judges of the Bombay High Court. Everyone knew that the article was based on actual events. He pleaded truth as defence; yet he was punished for contempt. In another instance, a sitting judge of the Bombay HC was in the habit of giving lectures on social justice every weekend. He was criticized by Govind Tawalkar as a ‘weekend revolutionary’. Contempt proceedings were initiated against him, in which the judge himself sat on the bench! Arundhati Roy is another well known example. The 2006 amendment, where truth is permitted as a defence if the court is satisfied that it is in public interest and bonafide, was sorely needed.

While the power of contempt is used frequently and sometimes arbitrarily, it should not be completely abolished, but used sparingly and in rarest of rare cases.

Justice Mishra: Judiciary should earn respect through its judgments and not try to extract respect by silencing any criticism. In Arundhati Roy’s matter, many think that it was trying to enforce respect. In the process, apart from making a ‘heroine’ out of Arundhati Roy, the court succeeded in making itself a ‘villain’, figuratively speaking.

But then I will not advocate the abolition of contempt power altogether. There was an instance in the Madras High Court where during a call of boycott given by the Bar Association, a small group of rampaging advocates entered the court of the Chief Justice, forcibly snatched the microphone and the brief from a senior advocate who was making submissions and shouted abusive slogans while the Chief Justice and the other judge remained mute spectators. By not initiating any contempt proceedings, the court did not show its magnanimity but displayed its fear, which only emboldened the handful of unruly lawyers.

In my considered opinion the criminal contempt power should be retained with adequate modifications. Making ‘truth’ as a defence is positive step. Moreover, such powers should be exercised only in the ‘rarest of rare cases’ and not with a view to silence criticism.

Soli Sorabjee: Contempt powers/criminal have not been used to silence opposition/criticism or dissent. In fact, judgments such as in the Shiv Shankar case are sterling examples of judicial tolerance to opposition, criticism or dissent. Judgments can be criticized and criticism, however strong, would not be contempt. However, criticism of a judgment should not be confused with motivated accusations, which are often made about judges. The provision of contempt of court is necessary for protection against motivated accusations that impair the administration of justice. However, at the same time, the act also gives a right to prove innocence and refute allegation, which is a unique provision under the present act. The amendment was introduced when I was the Attorney General of India.

Anil B. Divan: The power to initiate contempt proceedings for scandalizing the court or lowering its authority should be abolished. Such powers do not exist in other jurisdictions such as in the USA and in Europe. Similarly, in UK the use of this power has become obsolete. However, powers to initiate contempt proceedings in situations such as wilful disobedience of court orders and unacceptable behaviour in court – shouting, throwing missiles, etc. – should be retained.

Providing truth as a defence in the existing contempt laws is a step in the right direction. However, this may be difficult to prove against a sitting judge who can overawe the police, the executive and the administration.

 

Should police powers to investigate complaints in criminal cases against judges be (a) totally unfettered, (b) partly fettered, depending on seriousness of offence or (c) be governed by a blanket ban subject to sanction by CJI as presently exists? Do you think that investigation of corruption in the judiciary should be brought under the purview of the Lokpal?

Justice Verma: Suitable provisions in the Judicial Accountability Bill are required for this. Any machinery for investigation should be free from the executive, as the principle of judicial independence should not be compromised. Our Constitution has made various provisions to ensure that the judiciary is completely insulated from the executive. This concept of separation of powers is part of the basic structure of the Constitution and cannot be changed. Even in the present regime involving removal of judges, the adjudication of the complaint is by the judiciary whose findings form the basis for eventual consideration by the Parliament.

Justice Shah: The Veeraswamy judgment mandated prior sanction by the CJI to register FIRs. Under the Judicial Accountability and Standards Bill, this provision will become irrelevant since the committee is empowered to file FIRs against errant judges. I oppose bringing the judiciary within the ambit of the Lokpal.

Justice Mishra: Unlike the President of India and the Governors, no immunity from criminal prosecution is constitutionally envisaged for a judge. However, if the commission of the crime has some reasonable nexus with his official functions (not unholy nexus), prior sanction of an appropriate authority should be obtained. Instead of vesting such power in the CJI alone, it would be better to vest such authority with some highly empowered body such as a National Judicial Council or Lokpal.

Soli Sorabjee: A Chief Justice knows the judges and, hence, the concept of obtaining sanction from the Chief Justice of India is a salutary provision. Once the sanction is given, the police is then free to investigate like it would any other case. The judiciary should not be brought under the Lokpal. The Lokpal is not an exclusively judicial body. Any entity that looks into misbehaviour of judges must comprise exclusively of judicial members, with at most one eminent jurist or one person of eminence.

Anil B. Divan: The system of taking previous permission of the CJI (as envisaged by the Veeraswamy case) before filing an FIR or embarking on an investigation against superior judges has not worked well. There are instances where permission to initiate investigation/prosecution, though initially denied by a Chief Justice, was granted once his term ended.

Investigation of corruption has to be under an independent and permanent body with full infrastructure and permanent employees, data banks etc. Whether the judiciary should be brought under the Lokpal would depend on the actual provision of the final bill. It would be difficult and premature to give an answer at this stage. However, if the power now exercised by the CJI of giving prior permission exists, there is no reason why such a power cannot be given to an independent body like the Lokpal.

 

Does the resignation of a judge facing impeachment render redundant/infructuous the work of an enquiry commission and the impeachment process itself? If so, how is the judge’s judicial misconduct to be unearthed and how is he to be punished administratively so as to deprive him of perks, pensions and future appointments?

Justice Verma: An accused cannot frustrate a trial once it has begun. In my view, resignation of the judge would have no effect on enquiry into the misbehaviour being conducted by the judicial committee, which must be completed regardless. The relevance of the resignation may be considered at a later stage of the political process in Parliament while considering the motion of removal after the adverse finding of proved misbehaviour. It would be appropriate to amend the provision of resignation by a judge in Article 124 and Article 217 and make this clear. This is necessary to ensure that a judge does not frustrate an enquiry into allegations of misconduct after the process of his/her removal for proved misbehaviour has commenced.

Justice Shah: The enquiry should be continued despite resignation by the judge under investigation. Moreover, in case wrongdoing is established, the committee should be empowered to take punitive action such as depriving the judge of perks, future appointments etc. These provisions should be a part of the Judicial Accountability and Standards Bill.

Justice Mishra: The answer to the question, ‘Does the resignation of a judge facing impeachment render the process infructuous’, has to be an unequivocal and emphatic no. If common law concepts in service jurisprudence were to be applied, the resignation or retirement of a delinquent employee would not result in abolition of the proceeding. The impeachment, if successful, results in ‘removal’ of the judge, which would mean that the judge concerned not only loses all the benefits, whether in service or of retirement, he also loses his constitutional status. The impeachment process is a sovereign and constitutional duty of the Parliament and it is in its discretion to take the process of impeachment to its logical end, notwithstanding the resignation.

Soli Sorabjee: Resignation would not render infructuous the work of an enquiry commission, which can form the basis/material for further investigation and prosecution. However, once the judge resigns, impeachment becomes redundant.

Anil B. Divan: The removal procedure becomes infructuous on resignation, as there is no person to be removed from office. However, if the charges are serious, and prima facie involve criminal liability, the investigation and prosecution should continue in the normal course. Once the person has demitted office, the question of sanction or prior permission will not arise.

 

In India, the selection of judges is done through the collegium system. Has it been a success? If not, what reforms would you recommend?

Justice Verma: The working of the collegium system has exposed the need for further checks and balances. The failure of the executive to exercise the power of non-appointment in the area left to it and the impression, at times, of the judicial collegium’s lack of objectivity has given the occasion for the need for more checks and balances to ensure active joint participation of the executive in making the appointment. A National Judicial Commission so constituted, without giving the veto power to either the executive or the judiciary, has thus become the need of the hour.

Justice Shah: Originally the power to appoint judges vested in the executive, in consultation with the CJI. In the last of the famous trinity judge’s cases [In Re: Under Article 143(1) of the Constitution of India, (1998) 7 SCC 739], the Supreme Court changed the character of ‘consultation’ to ‘concurrence’. This judgment was completely flawed and was described by Justice Krishna Iyer as an egregious fraud on the Constitution.

The collegium system is out of step with democratic culture, primarily because it lacks transparency and provides for no oversight. The manner in which judges are appointed embodies a set of values about democracy. Selecting judges based on undisclosed criteria in largely opaque circumstances reflects an increasing democratic deficit. Current international consensus appears to favour appointments to the superior courts through an independent commission. For example, in the UK, South Africa, and several other countries, appointments are now made on the basis of recommendation by an appointments commission.

Justice Mishra: The collegium system is indeed a great failure and the sooner it is given up the better for the judiciary. In S.P. Gupta’s case [AIR 1982 SC 149], the Supreme Court, unfortunately, laid down that though the process of appointment can emanate from any of the constitutional functionaries, the primacy lay with the executive. This judgment of the Supreme Court opened the floodgates to executive interference in the appointment of judges so much so that there were instances of appointment of judges of High Court even without the knowledge of the Chief Justice of the concerned High Court. Simultaneously, another unfortunate policy of appointing the Chief Justice of a High Court from outside the state was conceived and implemented. The outside Chief Justice hardly had any knowledge relating to the local bar and was forced to rely on some ‘local adviser’. Unfortunately, all these circumstances together conspired to give rise to the concept of a ‘Godfather’. In this background, the Supreme Court suddenly discovered the novel interpretation to foist the system of collegium on an unsuspecting executive as well as the Bar, almost institutionalizing the concept of a ‘Godfather’.

Whatever might have been the justification for inventing the concept of collegium, experience shows that it has become an utter failure. Under the normal system, the Chief Justice of the concerned High Court possibly would have nominated one or two ‘favourites’ and the rest on merit. At present, the ‘favourites’ of all members of the collegium are to be accommodated and thereafter, there is hardly any scope for selection on pure merit. In addition, the concerned High Court collegium is expected to accommodate the ‘favourites’ of Supreme Court judges from the concerned state.

Though certain norms are supposed to be followed while recommending a name, these are followed more in the breach. For example, though it is a settled convention that advocates who are between ages 45 to 55 years should normally be recommended, there have been many exceptions to this convention and there are instances of appointment at the age of 38-40 or so. There is the recent instance of an advocate having been appointed as a judge of the Calcutta High Court at the ‘young’ age of about 60, thus having an expected tenure of only two years or so. The common thread in all such exceptional cases is that the persons concerned were highly connected. These instances leave the general public, including Bar members, highly disturbed.

Since the existing system has proved to be defective, it is high time that we introduce the concept of a National Judicial Council for appointment of judges. About a quarter century back, K. Parasaran, the then Attorney General, stated at a function of the Orissa Bar Council, ‘…previously judges were sought for, nowadays judgeship is being fought for.’ These words, which still ring in my ears, have proved to be prophetic. The old saying, ‘first deserve, then desire’, has no relevance today. The present motto appears to be simply ‘desire and manage’. And the best way to manage is to have a ‘Godfather’ – the more the merrier.

In the ultimate analysis, any change in the system is not likely to achieve its purpose unless proper persons are found to manage such system.

Soli Sorabjee: Selection by the collegium system has not been satisfactory. There should be a Judicial Commission consisting of three judges, i.e. Chief Justice of India and two more judges next in order of seniority, the Law Minister and one person of eminence to be appointed after consultation with the President of India and Chief Justice of India. The judiciary is best equipped to know the background of the candidates being selected. At the same time, there should be someone from the executive. The deliberations of this commission should be kept confidential as sensitive personal issues would be discussed. Like the Judicial Council, the commission must have proper infrastructure and wherewithal to obtain information that it would require.

Anil B. Divan: By all accounts, the collegium system has failed. It is completely opaque and non-transparent. New provisions have to be fashioned. Constitutional amendments are required to bring about a different method of appointment. Reverting to the old system of appointments where primacy rested with the government, would be wholly undesirable.

Definitely, a permanent independent body should be entrusted with the selection process. The executive should not have a predominant role. In case of Justice Dinakaran, the collegium system failed completely despite serious allegations. Justice Dinakaran may well have been appointed to the Supreme Court but for the issue being vigorously pursued by members of the Bar. Even then nothing further would have happened had removal proceedings not been initiated by Members of Parliament.

 

Currently, judges can only be removed or disciplined by impeachment or transfer. Have these mechanisms worked satisfactorily? If not, would an independent judicial accountability commission work better? What are your views on its composition (majority/minor judicial members, retired/serving judges etc? Would another method of enforcing judicial accountability work better?

Justice Verma: The National Judicial Accountability Bill should cover issues of judicial misbehaviour and removal of judges. The machinery for this purpose must ensure that the adjudication of any allegation of misbehaviour is left to a committee of judges to ensure judicial independence by separation of the executive from the judiciary. The constitutional scheme of separate treatment of the judiciary cannot be eroded.

Justice Shah: The impeachment and transfer of judges as a method of removal/disciplining is an imperfect system, and an independent judicial accountability commission is indeed required. International convention on the composition of such a committee mandates that a majority of members must be from the judiciary (UN basis principles on judicial independence, 1985 and UN resolution on procedures 1989). Moreover, the procedure for removal of judges must be under the control of the judiciary (Beijing Principle, World Conference on Judicial Independence at Montreal, Sira Cuosa, 1981).

Another method for enforcing judicial accountability would be to infuse greater transparency in the working of the courts. However, it is unfortunate that the rules framed under the RTI Act by the courts are in contravention of the spirit and meaning of the act.

Justice Mishra: The only way to remove a judge is by way of impeachment. Transfer cannot be considered as an effective method to control corruption because if a judge is corrupt, he would continue to be corrupt in the High Court to which he is transferred.

Instead of the present cumbersome method of impeachment, a simpler method should be introduced. If misconduct is proved before the appropriate committee or National Judicial Council or Lokpal, removal can be effected by order of the President. Impeachment effected through a simple majority rather than the two-third majority can also be considered as a reform measure.

Soli Sorabjee: The current process of impeachment is definitely cumbersome and difficult to implement since it often gets politicized. Transfers should not be punitive. Transfers must be only for the purpose of ensuring that local links are not formed with the judge.

The independent functioning of a judge is a constitutional prerogative and there should be no inhibition while performing this constitutional mandate. The judge should not be under the persistent glare of non-judicial bodies and organizations. If the performance is bad, there is a higher forum to reverse it. Then there is a vigilant Bar and press, which provides some degree of check.

 

Do you think that the allure of post-retirement appointments and/or arbitration opportunities can compromise independent judicial decision-making? Will the cause of independent judicial decision-making be better served by (a) increasing the retirement age, (b) improving post retirement benefits, (c) centralizing all appointments to commissions, arbitration etc., and (d) by any other method.

Justice Verma: I am for increasing the retirement age of High Court judges to equal that of the Supreme Court judges, but not for increasing the age of Supreme Court judges. In my view, the post-retirement conduct of the judges in the higher judiciary should also be regulated to ensure that they have not been influenced by any extraneous factor of post-retirement benefit during their tenure. Article 124(7) must be amended to expressly prohibit what is implicit therein. Any chamber practice or arbitration of private disputes for any personal consideration should be prohibited. The salary given as a lifetime pension should be enhanced and the judges should only be allowed to give opinions and act as arbitrators when invited to do so by the President or such other constitutional authority in a matter of public or national interest. Another exception could be appointment to any statutory tribunal and or authority for which only judges of High Court or Supreme Court are eligible.

Justice Shah: As per popular perception, judgments at the fag end of one’s judicial career are sometimes biased due to the allure of post-retirement appointments. However, the notion of biased judgments for possible future arbitration opportunities seems far-fetched. While a complete ban on post-retirement appointment is impractical, I think there should be some buffer period, say of two years. Centralizing appointments and arbitration is not a viable alternative. There should be a uniform retirement age for both HC and SC judges in addition to improved retirement allowances for HC judges (e.g., secretarial allowance) which are already being paid to SC judges, and also some HC judges.

Justice Mishra: No self-respecting judge would ever bother about post-retirement appointment. The retirement age should be the same for all the judges. Second, if all judges are allowed to retire with full benefits, there may not be too much hankering for post-retirement re-employment. If post-retirement positions for judges are considered absolutely necessary, at least there should be a reasonable ‘cooling-off period’ of say about one or two years before a retired judge is re-employed. There should be an even longer cooling-off period for retired Chief Justices as they would be in a better position to oblige during their tenure. Selection for re-employment should be made through the National Judicial Council or some such independent body.

Arbitration may stand on a different footing because the appointment does not depend upon the mere sweet will of the executive and the existing provisions appear to be adequate. However, a little caveat is necessary. Though the necessity of having retired judges as arbitrators cannot be avoided in the absence of any better alternative, yet a sneaking suspicion remains, particularly in bigger High Courts like Bombay, Calcutta, Delhi and Madras, that some judges on the verge of retirement try to pamper influential sections of the Bar hoping to wrest plum assignments in high-profile arbitration matters. There have been times when some retired judges have not hesitated to lobby for being engaged as arbitrators.

Soli Sorabjee: There should be a cooling period of say six months to one year during which the judge should not be entitled to take up any post. Judges should be free to take up post-retirement arbitration and opinion work. This right to practice should not be restricted in any manner.

Anil B. Divan: Post-retirement appointments would have the tendency in many cases to adversely affect the independence of the judiciary and also adversely affect judgments delivered near retirement. Part of the solution could be giving full salaries to retired judges with a provision of enhancement by linking them and making them equivalent to existing salaries if the latter are increased.

 

Is the current system of monitoring the competence, performance and integrity of subordinate judiciary by the respective High Courts satisfactory or should the responsibility be vested in an independent state/central judicial accountability commission?

Justice Verma: The current provision in Article 235 of the Constitution, vesting control over the subordinate judiciary in the High Court, is sufficient.

Justice Shah: The present system of monitoring competence and performance of the lower judiciary is unsatisfactory. The work in most High Courts is carried out in a routine and mechanical manner. There is also a lack of objectivity. No data is collected on performance, of the number of judgments reversed, confirmed, and so on. Moreover, HC judges are overburdened and don’t have time to read the judgments of the lower courts. Therefore, a permanent appointment commission (comprising of serving/retired HC judges) for the lower judiciary is needed. This commission can be responsible for recruiting civil judges, junior division and promotions as civil judge, senior division or district judge. Disciplinary powers should remain with the High Court. Finally, the vigilance section in most HC in under-staffed and under-resourced, and must be strengthened.

Justice Mishra: Though the current system emanates from the Constitution, it cannot be said to be satisfactory. It would be better to entrust the matter of assessing the issues of quality, competence etc. to a committee of retired judges constituted for this purpose and if possible, the names of all concerned should be kept secret by adopting a method of coding/decoding.

Soli Sorabjee: I have indicated that the current system of accountability, along with a National Judicial Council to look into misbehaviour, would be a satisfactory system. A separate body to oversee day-to-day competence, performance, etc. is not at all advisable. One may consider additional forms of accountability such as peer review, or review by the Bar. An in-depth study must be made of how and whether such reviews are carried out in other jurisdictions.