Judging the judges

On the initiative of the Chief Justice of India, a Committee of three State Chief Justices is examining the matter. The news from Rajasthan is still more alarming. Press reports indicate the involvement of a Deputy Registrar of the High Court in approaching a litigant lady doctor for sexual favours as a quid pro quo for helping her in a pending litigation with the connivance of a sitting judge.

Women’s organisations in Rajasthan have reportedly made a precise and particularised complaint mentioning the judge involved supported by audio tape evidence of a conversation at a meeting on October 18.

In Karnataka, the media reports that the Dusehra festive spirit overwhelmed some members of the higher judiciary when, on November 3, they indulged in activities unbefitting of a judge in the company of lady lawyers at a resort on Hunsur Road, Mysore. The Indian Federation of Women Lawyers Bangalore and women NGOs have demanded a thorough and transparent investigation and appropriate follow up action.

The Mysore City Police Commissioner Chandrashekhar on November 10 made a significant statement at a press conference about the alleged incident: ‘‘Normally, police would have information in advance if members of the judiciary are on an official visit to the city. But I did not have any information about the official visit of the members to the city on Sunday last. I don’t know if they were on an unofficial visit’’. (Deccan Herald, November 11).

It is reported that the inquiry ordered by the Chief Justice of Karnataka has come out with no pertinent facts and the police could not find in the guest lists in the resorts at Hunsur Road any name that could be linked to judicial officers.

These reports raise far-reaching issues about judicial misconduct but equally importantly raise issues of women’s rights against sexual harassment and vulnerability of women against exercise of coercive judicial power.

In the landmark Vishakha case, the Supreme Court, speaking through Chief Justice Verma, laid down guidelines against sexual harassment of working women and the right to a safe working environment. Can there be no vigorous and searching investigation to ascertain the truth? A minister, even a Prime Minister can be investigated, interrogated and charged but what is the mechanism of bringing to book a deviant judge?

The Constitution Review Commission headed by the highly respected former Chief Justice Venkatachaliah in a Consultation Paper stated ‘‘there has been of late public concern over judges… conducting themselves in an un-judge like manner’’.

The Mysore police are concerned with the commission of a crime and not with investigation of improper conduct. The following matters require further investigation: The record of guests at the resorts at Hunsur Road, according to the police, have not revealed any names linked with judicial officers.

Have fictitious names and addresses being given? Was any official transport used? If private transport was used, whom did it belong to? Did security officers looking after safety of judges maintain records? Did they show any movements of the dignitaries?

Are the judges of the High Court willing voluntarily to disclose their movements on November 3 and 4 which could rebut gossip and nail the rumours? It would certainly be an intrusion on their privacy but sacrifices are required to be made by persons exercising public powers and occupying position of public trust and in the interest of transparency, accountability and truth.

The challenge is whether under the existing legal and judicial framework a vigorous investigation by trained and skilled police personnel statutorily empowered and authorised by law to interrogate and investigate can be marshalled to find out the facts.

It is apparent that no inquiry that’s not preceded by such a vigorous investigation will yield any result and will certainly not inspire public confidence. A mechanism and machinery is capable of being evolved on the strength of the judgment of the Supreme Court in the Veerswami case.

A former Chief Justice of Madras faced prosecution under the Prevention of Corruption Act for being in possession of assets highly disproportionate to his known sources of income. An unregulated power of investigation by the police in the conduct of a judge would compromise and jeopardise the independence of the judiciary. It would give a weapon to the executive to undermine judicial independence. However a single dishonest judge not only dishonours himself but disgraces his office and jeopardises the integrity of the entire judicial system.

These conflicting public interests had to be balanced and harmonised. The Supreme Court, therefore, laid down guidelines and directed that ‘‘No criminal case shall be registered under Section 154 Criminal Procedure Code against a Judge of a High Court, Chief Justice of a High Court or a Judge of the Supreme Court unless the Chief Justice of India is consulted in the matter. If the Chief Justice is of the opinion that it is not a fit case to proceed under the Act, the case shall not be registered’’.

Following the same analogy, can’t an investigation be initiated by highly reputed neutral police officers under statutory powers including the power of questioning and interrogating, if necessary, judges of the High Court? It may be desirable to associate a senior sitting or former judge of the Supreme Court to monitor the investigation to preserve the independence of the judiciary.

It is clear that without a searching and vigorous investigation by an agency with statutory powers of investigation very little can be achieved. It is worth recalling that the American Bar Association Code of Judicial Conduct in Canon 2 lays down: ‘‘A Judge shall avoid impropriety and the appearance of impropriety in all the judge’s activities’’, and further Canon 4-A ‘‘A Judge shall conduct all of the judge’s extra-judicial activities so that they do not… demean the judicial office’’.

As far back as 1830 in Barrington’s case the British Prime Minister stated in Parliament that ‘‘there were many disqualifications, short of legal crime, which would justify the removal of a judge’’. The Supreme Court observed in the Veeraswami case that ‘‘misbehaviour by a judge, whether it takes place on the bench or off the bench, undermines public confidence in the administration of justice, and also damages public respect for the law of the land; if nothing is seen to be done about it, the damage goes unrepaired.’’

Unless vigorous in-house action is taken by the judiciary to repair the damage, public opinion will call for legislative intervention by Parliament. A legislative mechanism unless properly framed may be subversive of judicial independence.

It is imperative that the higher judiciary must creatively craft and put in place a workable mechanism to meet the challenge of un-judge like behaviour. Every adversity is an opportunity. An innovative initiative by the Supreme Court under the leadership of the Chief Justice of India will be widely supported by the Bar and citizens if they perceive that the judiciary will live by the precept ‘‘Be you ever so high the law is above you’’.

The writer is a senior advocate in the Supreme Court of India