On the golden jubilee of the Supreme Court in January 2000, Chief Justice Anand proudly stated,‘‘It is a matter of pride and satisfaction that the judiciary today enjoys credibility far greater that that enjoyed by the other two wings of the state.’’ A year later, this sense of self-satisfaction was shaken when the succeeding chief justice, S.P. Bharucha, publicly lamented that ‘‘eighty per cent of the judges in the country were honest and incorruptible and the smaller percentage was bringing the entire judiciary into disrepute’’. Between last year and this year, at least eight judges of different high courts have come into prominence for alleged misconduct and impropriety affecting the discharge of their judicial functions. Even if some of these charges are unsubstantiated, their mere airing can shake public confidence in the higher judiciary. Even worse is the impression gaining ground that there is no way of disciplining judges of superior courts. There is then an urgent need to set up a credible machinery to investigate charges against judges. The Constitution framers provided for the removal of Supreme Court and high court judges for proven misbehaviour or incapacity through impeachment by Parliament. When this method was adopted in 1950, the superior judiciary consisted of a cohesive body of seven judges of the Supreme Court and a few judges of five high courts. The makers of our Constitution obviously believed the occasion for the removal of judges of a superior court would be a rare event. Half a century later, conditions are different. There are now 25 judges of the Supreme Court and about 600 of the high courts. The winds of falling standards of public life have not swept past judges of the superior courts without affecting them. In the only instance in which impeachment was tried in 1993, in the case of Justice V. Ramaswamy of the Supreme Court, the method proved cumbersome, dilatory and political. Removal of judges by impeachment is therefore no longer a practical method. In the absence of a legally sanctioned method for disciplining judges of superior courts, extra-constitutional methods have been resorted to. On two occasions, the Bombay Bar took the law in their own hands against judges whose integrity came into question. On the first occasion, they called for the resignation of four judges, and in response the then chief justice of the high court did not assign work to them till they were transferred or retired. On the second occasion, they called for the resignation of the chief justice of the high court, who eventually resigned at the instance of the chief justice. This is a dangerous method as it makes lawyers self-appointed disciplinary authorities over judges. Last year, the chief justice appointed three committees of judges to inquire into allegations of impropriety by judges of three high courts. The result was unsatisfactory as these committees did not have the authority of law to summon evidence and effectively investigate the charges. Even when in some cases the findings were against judges, no action could be taken against them. A convenient way to avoid action against a judge under a cloud has been to transfer him to another high court resulting in protests from the bar of that high court, which understandably does not wants such a judge. As long as the Constitution is not amended to change the method of removal, there cannot be an alternate legal method of their removal. But short of removal of judges of superior courts, there is no reason for not making a law for investigating misconduct of judges and disciplining them. In the US, while the method of removal by impeachment of federal judges by Congress is still considered appropriate, there is a supplemental law — the Judicial Councils Reform and Judicial Conduct and Disability Act of 1980. We can adapt it for our purpose. Under this Act, complaints alleging that a judge ‘‘has engaged in conduct pre-judicial to the effective and expeditious administration of the business of courts’’ 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. Upon receipt of their report, the Judicial Council may, one, direct the judge under investigation to take such action as the Council deems fit. Two, request the judge to retire voluntarily. Three, order that on a temporary basis no further cases should be assigned to him. Four, reprimand such a judge publicly or privately. Five, report the case to the House of Representatives for impeachment. The judge has full opportunity to defend himself and he has a right of review to a Federal Judicial Council whose proceedings are confidential. A similar law must be enacted by the Indian Parliament in consultation with the chief justice. It will provide a legal way to take disciplinary action against judges of superior courts. It will provide protection to the judges against groundless charges and, at the same time, satisfy the lawyers and the public that complaints against judges of superior courts are investigated by a credible machinery. It will also largely solve the problem of bringing the judge in contempt by public criticism of judges, as a failure to resort to this machinery may be a good ground for believing that the complainant did not have a genuine complaint against the judge. (The writer is a former solicitor general of India)
