Impeachment doesn’t work in practice
By Justice DV Shylendra Kumar
Judicial accountability is a phrase which sounds incongruous and can convey conflicting messages. It has assumed importance in the wake of the improper, irregular, incorrect manner of functioning of judicial officers. In the true sense of the phrase ‘judicial accountability,’ an order passed on the judicial side can be made accountable only before a higher appellate forum.
Judges of the subordinate judiciary — which is judiciary up to the level of district courts in a state — are all made accountable in respect of their acts as they are amenable to the disciplinary control enforced and supervised by the respective high courts of the states.
Insofar as the judges of the superior courts are concerned, the only way of disciplining an errant judge of a High Court or the Supreme Court is by way of impeachment by Parliament as provided in Article 124 of the Constitution of India, particularly, sub-articles (4) and (5) of Article 124, which reads as under:
124.Establishment and constitution of Supreme Court.—
(4) A Judge of the Supreme Court shall not be removed from his office except by an order of the President passed after an address by each House of Parliament supported by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present and voting has been presented to the President in the same session for such removal on the ground of proved misbehaviour or incapacity.(
5) Parliament may by law regulate the procedure for the presentation of an address and for the investigation and proof of the misbehaviour or incapacity of a Judge under clause (4).
In respect of the Judges of the High Courts, the provisions of Article 217 of the Constitution of India, particularly, as indicated in clause (b) of sub-article (1) of Article 217, is the procedure envisaged for the removal of a judge of a High Court.
217. Appointment and conditions of the office of a Judge of a High Court—
(1) Every Judge of a High Court … shall hold office, in the case of an additional or acting Judge, as provided in Article 224, and in any other case, until he attains the age of sixty-two years:Provided that —
(a) a Judge may, by writing under his hand addressed to the President, resign his office;
(b) a Judge may be removed from his office by the President in the manner provided in clause (4) of article 124 for the removal of a Judge of the Supreme Court; or
(c) the office of a Judge shall be vacated by his being appointed by the President to be a judge of the Supreme Court or by his being transferred by the President to any other High Court within the territory of India.For the present, there is no other mechanism or procedure to discipline an errant judge of a superior court and if the past experience is any indication, the impeachment procedure does not work in reality and in practice.
More so in the present political system in our country where motions and debates in parliament are based only on political considerations, impeachment mechanism may never be a practical methodology of disciplining an errant judge of a superior court, unless there is consensus amongst the political parties. That virtually leaves the judges of the superior courts immune from any accountability and that is why the phrase ‘judicial accountability’ assumes importance and significance.
Every judge of this country is a public servant and every public servant is, without any second opinion, accountable to the people of this country. The conduct of a judge outside his office should also be one which can pass muster in the eyes of the people. In the scheme of our Constitution, the Supreme Court cannot have any say in the matter of the functioning of the high courts (as it is not a subordinate court to the Supreme Court) and the only authority of the Supreme Court vis-a-vis high courts is on the appellate side, as provided under the laws and under the Constitution.The concept that the Chief Justice of India, being the head of judiciary in the country, and therefore, can exercise his moral authority to ensure that erring judges fall in place and behave themselves, is a misnomer and misconception. The mere moral authority of the Chief Justice of India, is of no value or significance, unless it can have some binding effect, which is not so provided under the Constitution.
The Chief Justice of India is more like a serpent without fangs, who can only hiss, but not bite, which will be an open secret in no time and the serpent will not be feared by any one, however menacing it may look, however loud it may hiss! An errant judge is a person who has breached the moral code of conduct, is a brazen person on whom no moral authority binds, nor does he respect moral authority. With the constitutional mechanism and the inside mechanism failing to usher in any measure of judicial accountability, the only alternative is by taking the issue to the people who are the masters in our polity, and alert judicious public opinion. In moulding such public opinion, legal fraternity has the most important role to play.
The Bar is said to be the watchdog of the Bench. Conduct of the judges while functioning in the courts is watched and judged by lawyers day in and day out. It is lawyers who educate a judge, who provide him inputs for satisfactory judgments, who can also understand and point out follies of a Judge.
It is for the lawyers to ensure that the judges behave and conduct themselves in a proper manner. That alone can ensure a degree of judicial accountability. Our courts are open courts and the functioning of judges is in the glare of members of the public. That is the greatest safety and assurance of an upright judiciary.
Public opinion should be motivated and guided in this direction and our lawyers have a definite and great role to play in this regard. On this occasion, I would like to quote from the book ‘Judges’ written by Sir David Pannick, Barrister; Fellow of All Souls College, Oxford, and a very eminent Queen’s counsel, a small part of the conclusion in chapter — 8 of the book. “The judiciary is not the ‘least dangerous branch’ of government … Judges are not mere ‘lions under the throne’ … They send people to prison and decide the scope and application of all manner of rights and duties with important consequences for individuals and for society. Because the judiciary has such a central role in the government of society, we should (in the words of Justice Oliver Wendell Holmes) ‘wash… with cynical acid’ … this aspect of public life. Unless and until we treat judges as fallible human beings whose official conduct is subject to the same critical analysis as that of other organs of government, judges will remain members of a priesthood who have great powers over the rest of the community, but who are otherwise isolated from them and misunderstood by them, to their mutual disadvantage.
I am sure this is equally so or more so in respect of our judges and our society, and this message will definitely reach the people of our country through the members of the Bar and the judiciary in our system is retained, respected and ensured to function for the purpose for which it is meant in our Constitution.
(Edited and condensed form of article written by Karnataka High Court judge D V Shylendra Kumar on his website)