February 22, 2020
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Judgement Day

Should judges be judged? The answer, in view of allegations of misconduct, is obvious. The debate is on how to do it.

Judgement Day
illustration by Jayachandran
Judgement Day
Three years after the conference of chief justices resolved to adopt a code of conduct for the higher judiciary, recent charges of misconduct by judges of various high courts have once again focused attention on the need for a strong dose of judicial accountability. The charges are serious enough—from sexual harassment to carousing in a restaurant to nepotism—to have prompted Supreme Court Chief Justice G.B. Pattanaik to conduct independent inquiries into all the allegations. If personally satisfied that there is a prima facie case, he says he may even ask the concerned judges to resign.

While Justice Pattanaik (see interview) believes that the Supreme Court's in-house procedure for dealing with such cases is adequate, many legal experts feel Parliament must enact a law to make the code of conduct for judges mandatory. Says former CJI A.S. Anand: "Judges are accountable to one billion people. With that in view, a committee of SC judges drafted a code of conduct (Restatement of Values in Judicial Life) which was adopted by all the high courts. We also drafted a procedure for dealing with judges who flouted the code. This, too, was accepted. But no statutory base has yet been accorded to the code, despite representations to the government."

The need for a mandatory code of conduct is felt when one weighs the latest allegations of judicial misconduct:

  • Three Karnataka HC judges, accompanied by women, get into a brawl in a Mysore wayside eatery.

  • A Rajasthan HC judge and a court staffer offer to settle a litigant's case if she "obliges" them.

  • Three Punjab & Haryana HC judges use their clout to get their nominees selected by Punjab Public Service Commission ex-chief and scam-accused Ravi Sidhu.

  • A drunk Madhya Pradesh HC judge uses foul language in an exclusive club in Bhopal.

  • A Rajasthan HC judge (since transferred) sexually molests a male constable.

Within the existing parameters, says former Union law minister and eminent Supreme Court lawyer Shanti Bhushan, the present CJI is doing just what the doctor would order. "He has said he'll conduct independent inquiries (in the Rajasthan and Karnataka incidents) and if satisfied prima facie that there is a case, he'll ask for the judges' resignations. If they don't oblige, he will resort to constitutional provisions, which means he'll write to the government for initiating impeachment proceedings."

But, according to lawyer Prashant Bhushan, the real test for the CJI (and the voluntary code of conduct) will be the Punjab & Haryana High Court case in which three judges were accused of nepotism. The first part of the in-house procedure has already been followed, with former CJI B.N. Kirpal having received a report from the Punjab and Haryana chief justice. "It is for the current incumbent to take action on the report," adds Bhushan.

Former CJI S.P. Bharucha had estimated the extent of corruption in the judiciary as being 20 per cent. Says Justice Michael Saldahna of the Karnataka HC: "My reading is that it is 33 per cent." More important than the actual incidence of corruption, he says, is the public's perception of the judiciary. Says he: "In the Punjab & Haryana HC case, three judges got personal favours from the chairman of the Punjab Public Service Commission. This is reported by the media and the common man believes something scandalous has taken place in the judiciary."

Anand maintains the voluntary code in itself is not enough and that legislative sanction for it is long overdue. "The time has come for the government to take steps, so that some action—apart from impeachment—is possible." While the details need to be worked out, he says complaints must be on the basis of an affidavit and the judge must be given a fair hearing.There could also be an investigative agency manned by the judiciary to assist the CJI in his inquiry.

Justice Saldahna agrees that a constitutional amendment setting up a statutory body—"say, like the Central Vigilance Commission, with retired CJIs"—is desirable. He created a furore among his colleagues when he said the judges who are currently under a cloud for public misconduct should clear the air. "If these allegations are true, they would erode the confidence of the bar and litigants, making it impossible for the (judge) to continue functioning," said Justice Saldahna.

Formulating a statutory procedure for dealing with complaints against the judiciary is useful for the judges as well, says Anand. "It is easy for some disgruntled litigants to make allegations that can damage the image of a judge. So, it is in the interests of judges and also the institution that there is some mechanism by which complaints are looked into. If proved baseless, the person levelling the charges will be held accountable." Credibility is a judge's greatest asset, he points out. To maintain it, all allegations must be probed.

In fact, Justice Anand was himself at the receiving end of charges of judicial misconduct, regarding land deals in j&k and Madhya Pradesh, but never defended himself publicly. The eminent SC advocate Shanti Bhushan had written to the President, prime minister and judges of the SC alleging that the then CJI had compromised his judicial integrity during his tenure in the j&k High Court. Nothing came of it, but the Committee On Judicial Accountability (coja), comprising eminent members of the Bar like Shanti Bhushan, Indira Jai Singh and Ram Jethmalani as well as former members of the Bench like V.M. Tarkunde and Rajinder Sachar, pointed out that there was no credible mechanism to inquire into complaints against the higher judiciary.

The coja proposed the setting up of a National Judicial Commission (njc) through an Act of Parliament to deal with misconduct by judges (as well as appointments). It would comprise five members appointed respectively on the recommendation of all the sitting judges of the SC, all the chief justices of the high courts, the cabinet, the leader of the Opposition and the Bar Council of India. The njc would have an investigative machinery under its administrative control and its recommendations would be mandatory. The proposal cited Parliament's refusal to impeach SC justice V. Ramaswami, even after a committee of his fellow judges had found him guilty of misconduct and urged his impeachment.

Says former Bombay High Court judge Hosbet Suresh: "It's important to set up a judicial performance commission to assess the performance of judges and deal with complaints of misconduct because at the level of the higher judiciary, impeachment is the only way to remove a judge." Former SC judge V.R. Krishna Iyer also believes that a law to give statutory power to the code of conduct, through a constitutional amendment, is desirable. "I had suggested a judicial performance commission but now I am in two minds about that," he observed.

The government has no role to play, either as investigator or enforcer, because of the immunity enjoyed by the higher judiciary, no member of which can be investigated without the sanction of the CJI. And such a sanction has never been sought, with the government preferring to leave such sensitive matters to the CJI. "While we may hear of serious complaints against a particular justice and even get to see copies of the complaints, we have no power to pursue them," says a senior law ministry official.

At times, it is the government that dilly-dallies. Law ministry sources cite the case of a Rajasthan HC judge twice accused of aggressive homosexual behaviour.The CJI was satisfied that the charges were prima facie true. But when he wrote to the central government recommending impeachment, he was asked to re-examine the matter to be sure the case was watertight and no re-enactment of the Ramaswami case would occur. The case was passed on from one CJI to the next and then dropped altogether.

The government is yet again contemplating the setting up of a National Judicial Commission, as recommended by the Constitution Review Commission. It is to be chaired by the CJI, but whether it will deal with appointments alone or whether it would have punitive powers to deal with instances of misconduct by judges, hasn't yet been decided. Till such time that some mechanism is put in place, only the judges can judge themselves.

By Bhavdeep Kang With B.R. Srikanth and Priyanka Kakodkar
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