Disciplining the judges
T.R. Andhyarujina in THE HINDU
There is an urgent need to set up a credible statutory machinery to investigate charges against judges of the superior judiciary.
On the occasion of the Golden Jubilee of the Supreme Court of India in January 2000, the Chief Justice of India, Dr. A.S. Anand, proudly stated: “It is a matter of pride and satisfaction that the [Indian] judiciary today enjoys credibility far greater that that enjoyed by the other two wings of the state.”
A year later this feeling of self-satisfaction was rudely shaken when the succeeding Chief Justice, S.P. Bharucha, publicly lamented that “80 per cent of the judges in the country” were honest and incorruptible but a smaller percentage of them was “bringing the entire judiciary into disrepute.”
Since then, judges of at least eight High Courts have had charges of misconduct levelled against them. Two of them have resigned and two are facing removal through parliamentary procedure. Even if the charges against some judges remain unsubstantiated, the very fact that these have been aired has shaken public confidence in the higher judiciary.
The Constitution-makers only provided for the removal from office of Supreme Court and High Court judges by means of joint action by the two Houses of Parliament, for proved misbehaviour or incapacity. The Constitution-makers adopted this method of removal by impeachment by Parliament from the U.K. and the U.S. At that point in time in the U.K. the last instance of a judge being sought to be impeached had occurred two centuries earlier. And in the U.S. only one judge of the Supreme Court had been unsuccessfully impeached, in 1805.
Apparently the Constitution-makers believed that in India too the removal of judges of a superior court would be a rare occurrence. Sixty years later, the conditions are different. In 1950 the superior judiciary consisted of a body of eight judges of the Supreme Court and a few judges in nine High Courts. There are now 31 judges in the Supreme Court and over 750 in 21 High Courts. The winds of falling standards of public life have not avoided the judges of the superior courts. Charges of misconduct against judges of superior courts are now being frequently made. 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 to be cumbersome, dilatory and political.
If the reputation of, and confidence in, the higher judiciary is to be maintained there is an urgent need to set up a credible statutory machinery for investigating charges against judges so that responsible criticism of the conduct of judges is immediately looked into and action taken, and at the same time unfounded allegations against them are nipped in the bud. For over 60 years there has been no such legal machinery. It is paradoxical that Chief Justice P.D. Dinakaran of the Karnataka High Court is facing impeachment proceedings for his removal only because of his proposed elevation to the Supreme Court, which prompted lawyers in Chennai to level serious charges of misconduct against him. Had there been a statutory body to investigate misconduct by judges, the allegations could have been referred to it earlier and the present fiasco could have been avoided.
Under current practice, to deal with such problems of delinquency the Chief Justice of India appoints a committee of judges to enquire into allegations of impropriety by judges of High Courts. Such committees, which do not have any authority of law to enquire into charges or summon evidence and effectively investigate the matter, have not inspired confidence in lawyers. Even if the committee finds a judge guilty of misconduct, he or she cannot be removed from office by the Chief Justice or even suspended.
A convenient way to avoid disciplinary action being taken against a judge who has come under a cloud has been for the Chief Justice of India to transfer him or her to another High Court. This sometimes results in protests from the Bar of the High Court to which he or she is transferred, which understandably does not want to have a delinquent judge in their court.
Another problem is that at times public criticism of the conduct of a judge by the media runs the risk of action for contempt of the court — as happened in Karnataka a few years back.
So long as the Constitution is not amended to delete the method of removal of judges by Parliament, there cannot be an alternative method for their removal. But short of removal of judges of the superior courts, there can be a law to investigate misconduct by judges and take appropriate action. The U.S. Constitution has the method of removal by impeachment of federal judges, but there is a supplemental law to consider complaints of misbehaviour by federal court judges and discipline them, short of their removal. The Judicial Councils Reform and Judicial Conduct and Disability Act of 1980 which was made by Congress in consultation with the U.S. Supreme Court, provides a method by which federal judges can be effectively disciplined by their own peers.
In the U.S. in 1993, a National Commission set up by Congress to consider Judicial Discipline and Removal of Judges reported that with the 1980 Act there was no need to change the constitutional method of removal by Congress as the 1980 Act was a credible supplement to it. The Commission found that the most important benefit of the 1980 Act was the impetus it gave to the informal resolution by the judiciary itself of the problem of judicial misconduct.
Under the 1980 U.S. Act, complaints that a judge “has engaged in conduct prejudicial 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 receiving their report, the Judicial Council may take one of five steps. It may direct the judge under investigation to take such action as the Judicial Council may deem fit. It may request the judge to retire voluntarily. It may order that no further cases be assigned to him for the time being. It may censure or reprimand such a judge publicly or privately. Or, if the judge deserves removal, his or her case is reported to the House of Representatives for impeachment. The judge has a full opportunity to defend himself or herself and he or she has a right of review by a higher Federal Judicial Conference. The proceedings of the Judicial Council are confidential. Experience shows that a judge who is found guilty resigns on an adverse report being made by the Judicial Council.
This method ensures the independence of the judiciary as the investigation is made by a peer body of judges, and at the same time it makes a deviant judge accountable to his or her own fraternity of judges. I have strongly recommended that a similar law requires to be made in India by Parliament in consultation with the Chief Justice of India. If made, it will provide a legal way to take disciplinary action against judges of superior courts. It will provide protection to judges against groundless charges being levelled against them, and at the same time satisfy lawyers and the public that complaints against judges of superior courts can be made and will be investigated by a lawful machinery. It will deter irresponsible allegations as heavy costs could be imposed on those who level them.
In 2006, a Judges (Inquiry) Bill was formulated by the Government of India on the recommendation of the 195th Report of the Law Commission. It had the essential features of the U.S. Judicial Council Act, 1980. It received the approval of the then Chief Justice of India in principle. Had it been passed by Parliament, many of the present problems of judicial misbehaviour could have been dealt with. Unfortunately, an adverse report on it was made by a Parliamentary Committee in August 2007, mainly for seeking to entrust the disciplinary action to a body composed only of judges. This criticism was misconceived. Only a peer body of judges should enquire into misconduct of judges. The belief that judges would protect their brethren is mistaken. Judicial Councils have worked satisfactorily in the U.S. and Canada. Such a body was also recommended by a committee to amend the Constitution that functioned under the former Chief Justice, M.N. Venkatachaliah.
The Law Minister has announced that a comprehensive Judges Standards and Accountability Bill is being drafted. Its contents have not been made public but we are told it would include provisions for judges to disclose their assets, lay down standards of conduct and provide for a machinery to investigate charges of misbehaviour. Such an enlarged legislation is bound to be controversial. It would be better if a simple and focussed bill on investigating the misbehaviour of judges was enacted along the lines of the Judicial Inquiries Bill of 2006. There is an urgent need for it.
( T.R. Andhyarujina is a Senior Advocate at the Supreme Court and a former Solicitor-General of India.)