Judging judges, credibly

It is a matter of pride and satisfaction that the judiciary today enjoys credibility far greater that enjoyed by the other two wings of the ...

It is a matter of pride and satisfaction that the judiciary today enjoys credibility far greater that enjoyed by the other two wings of the State8221;. That was Chief Justice Anand speaking on the golden jubilee of the Supreme Court in January 2000. A year later this self-satisfaction was shaken when the next chief justice, S.P. Bharucha, publicly lamented that 8220;80 per cent of judges in the country were honest and incorruptible and the smaller percentage was bringing the entire judiciary into disrepute8221;.

Since then at least eight judges of different high courts have been the focus of allegations of misconduct and impropriety. Even if some of the charges against them remain unsubstantiated, their mere airing can shake public confidence in the higher judiciary. Even worse is the growing impression that there is no way of disciplining judges of the superior courts, while judges of the lower courts can be easily removed from office. If confidence in the Indian higher judiciary is to be maintained there is an urgent need to set up a credible legal machinery to investigate charges against judges so that responsible criticism of the conduct of judges is investigated and action taken against them, even while those indulging in irresponsible reports are punished.

At present there is no such legal machinery. Framers of the Constitution only provided for the removal from office of Supreme and high court judges for proven misbehaviour/incapacity through parliamentary impeachment. When this was adopted in 1950, the superior judiciary consisted of a cohesive body of eight Supreme Court judges and a few judges of the nine high courts. The Constitution makers adopted the idea of parliamentary impeachment from the UK and US. In the UK, the last judge sought to be impeached was two centuries back; in the US, one judge of the Supreme Court had been unsuccessfully impeached in 1805. Framers of our Constitution obviously believed that in India, too, the need to remove a senior judge would be a rare event.

But 50 years later, conditions here are different. There are now 25 Supreme Court and about 750 high court judges, and they have not remained unaffected by the winds of falling standards of public life. In the only instance when impeachment was tried in 19938212;the case of Justice V. Ramaswamy of the Supreme Court8212;the method was found to be cumbersome, dilatory and political. Removal of judges by impeachment is therefore no longer practical.

In the absence of a legally sanctioned method for disciplining the higher judiciary, extra-constitutional methods have at times been resorted to. On two occasions, the Bombay Bar took matters into their hands. In the first instance, they called for the resignation of four judges of the court, and in response the then chief justice of the high court did not assign work to them till they were transferred/retired. In the second instance, they called for the resignation of the chief justice of the high court, who eventually resigned. This is a dangerous method, however, as it makes lawyers self appointed disciplinary authorities over judges. To deal with the problem in some cases the chief justice of India has appointed committees of judges to inquire into allegations of impropriety. The result is unsatisfactory as the committees do not have the authority to inquire into the charges or to summon evidence. Another acute problem is that criticism of the conduct of a judge in public by the media runs the risk of inviting action for contempt 8212; as happened in Karnataka.

So long as the Constitution is not amended, there cannot be an alternate legal method of removing senior judges. But short of removal, there is no reason for not making a law to investigate misconduct of judges. In the US, while the method of removal by impeachment of federal judges by Congress is still considered appropriate, there is a supplemental law to consider complaints of misbehaviour by federal court judges. This has worked very well and India could consider this approach. Under the US 1980 Act, complaints alleging that a judge 8220;has engaged in conduct prejudicial to the effective and expeditious administration of the business of courts8221; can be made to the chief judge of a Judicial Council of Judges. If the complaint is frivolous it is dismissed. If not, it is investigated by a special committee of judges.

This method ensures judicial independence, while making a deviant judge accountable to his own fraternity. Such a law requires to be made here by Parliament in consultation with the chief justice of India. It will provide a legal way to take disciplinary action against senior judges. It will also protect judges against groundless charges and, at the same time, satisfy lawyers and the public that complaints against judges of superior courts are investigated credibly. It will also help solve the problem of contempt of the court by public criticism of judges, as a failure to resort to this machinery may be a good ground for believing that the complaint was not genuine.

The writer is a former solicitor-general of India