Cover Story

Credibility crisis

Print edition : May 25, 2018

Chief Justice of India, Justice Dipak Misra, flanked by Justices Indu Malhotra (right) and R.K. Agrawal arrives for the farewell ceremony of Justice Agrawal organised by the Supreme Court Bar Association at Supreme Court in New Delhi on May 4. Photo: Manvender Vashist /PTI

Justice K.M. Joseph, Chief Justice of the Uttarakhand High. Photo: Shahbaz Khan/PTI

The Supreme Court of India. Photo: V. SUDERSHAN

The credibility of the Supreme Court as an independent institution suffers erosion, with the office of the Chief Justice of India coming under a cloud.

THE “IMPEACHMENT” of the Chief Justice of a country is a “jaw-dropping” development that would justify a reaction similar to the utter startlement described in Sir Walter Scott’s (a lawyer and a judge by profession) celebrated 1816 novel The Antiquary: “What! Is it my rara avis, my black swan?”

The “black swan” impeachment of Chief Justice Dipak Misra is a path-breaking event because it is the first impeachment in which a key ground of alleged misbehaviour is political bias—compromising judicial independence to favour the party in power. As a result, most unusually, political parties have played a lead role in this impeachment. They have traditionally been “reluctant brides” in the impeachment process, extremely wary of joining hands with activist lawyers and civil society to hold Supreme Court and High Court judges accountable.

In a sense, more than the Chief Justice was on trial in this aborted impeachment. The impeachment arose from a cloud of questionable judicial decisions. There has been quite a long string of surprising legal victories for the ruling dispensation in matters of critical political importance. The shutting down of investigation into the death of a judge who was deciding a very sensitive case of a top political leader was shocking. Social justice laws are being read down in line with conservative ideological concerns. The executive seems to be dismantling the collegium system, disregarding and cherry-picking collegium decisions to weed out independent judges. The quiet reaction of the Chief Justice to the refusal of the government to implement the collegium decision first to transfer and then to elevate to the Supreme Court Justice K.M. Joseph, who had made a crucial judicial decision against the ruling dispensation on a key political issue, stands in sharp contrast to the clearly laid-down law and precedent in this regard. In all these cases, politics seems to have broken into courts and now spilled over into the grounds of impeachment. Add to this mix swirling speculation about likely implications of the impeachment for the crucial Ram Temple decision (had the impeachment continued) and we seem to have the first case of impeachment of a judge because of his politics.

Political dimension

The political dimension of the impeachment motion is not obvious in the first four grounds cited against Justice Misra, which relate to corruption. Three of these grounds deal with interference with investigation into alleged bribery to obtain favourable orders in a case relating to private education. The fourth ground is the alleged filing of a false affidavit by Justice Misra to acquire land while he was still an advocate. The latter, of course, raises an interesting question that the Congress will need to answer—if this was indeed true, why did successive Congress governments endorse Justice Misra in January 1996 (when P.V. Narasimha Rao was Prime Minister) for appointment as a High Court judge and in October 2011 (when Manmohan Singh was Prime Minister) for appointment as a Supreme Court judge, putting him on track to become the Chief Justice of India?

The charge of engaging in politics lies in the fifth and last ground of impeachment which, in essence, charges the Chief Justice with compromising judicial independence. Picking up the concerns in the letter released by the four longest-serving puisne judges of the Supreme Court in their January 12, 2018, press conference, ground five says, “Chief Justice Dipak Misra has abused his administrative authority as master of roster to arbitrarily assign individual cases of particular advocates in important politically sensitive cases, to select judges to achieve a predetermined outcome” (emphasis added). The implication is clear: the purpose of this arrangement was to secure judicial decisions favouring the ruling dispensation.

Ground five implicates not only the Chief Justice but also members of the Bar, other judges of the Supreme Court and, potentially, other top officials and political leaders in a widespread conspiracy to subvert judicial independence and integrity and constitutional governance in India. There cannot be a more serious charge. If the allegation is false, those who brought forward the motion owe the Chief Justice and the others implicated much more than an apology. If, on the other hand, the allegation is true, the existence of an illegal arrangement to procure pre-determined outcomes in the Supreme Court of India, involving the Chief Justice of India and one or more other judges as well as top officials and members of the Bar, must surely be the greatest security threat India faces. It is shocking that four sitting judges of the Supreme Court and 64 Members of Parliament make such a grave charge and yet the Chairman of the Rajya Sabha refuses to have it inquired into.

In this light, the decision of the Chairman to reject the motion is particularly unfortunate from a public policy point of view if only because an independent inquiry by a committee appointed by him under the Judges (Inquiry) Act, 1968, could have cleared the air on these grave allegations, especially on ground five. The hurried rejection of the motion leaves these serious allegations unresolved. The purpose of provisions of judicial accountability in the Constitution (Article 124 (4) and (5)) as well as the Judges (Inquiry) Act is more than punishing judges—it is also protecting the integrity of institutions by removing doubts and suspicions about them in a transparent and credible way. By blocking such a process, the Chairman has, with due respect, done considerable harm to the judiciary. Nor is the blocking of an inquiry fair to those implicated or to the public. It will erode public trust and confidence in the judiciary.

Nor is the rejection of the motion justifiable from a legal point of view. The scheme of the Judges (Inquiry) Act, in effect, divides the removal process into a political part and a judicial part. The political part consists of two main steps. First, MPs commence the removal process by giving to the Chairman of the Rajya Sabha (or the Speaker of the Lok Sabha as the case may be) notice that they wish to move a motion for removal of a judge. Second, should the judicial process under the Act (which starts after the Chairman admits the motion and sets up a three-member inquiry committee comprising a sitting judge of the Supreme Court, a High Court judge and an eminent jurist) find that the grounds cited by the MPs are proved, the House (by a majority of two-thirds of members present and voting) requests the President of India to remove the judge from office. There are deliberately no statutorily prescribed requirements on the content of the motion or on minimum standards of supporting evidence in the Constitution of India (Article 124 (4)(5)), the Judges (Inquiry) Act, or the Rules under the Act.

Usurping the judicial role

The Chairman is in error when he usurps the judicial role of the inquiry committee and assesses the grounds on merit, concluding that all five allegations are neither “tenable nor admissible”. The Chairman does not have any power to assess the grounds and find that they only “indicate a mere suspicion... a conjecture, or an assumption” and do not constitute “proof beyond reasonable doubt which is required to make out a case of proved misbehaviour”. The Chairman is in error when he appreciates evidence and concludes that “conversations between third parties with dubious credentials cannot themselves constitute any material evidence against the holder of the office of the Chief Justice of India”. Nor can the particular judicial office held by the judge affect the standard of proof in such proceedings. The Chairman also greatly exceeds his brief under the law when he concludes that the allegations “have a serious tendency of undermining independence of judiciary”.

The Chairman ignores the holding of the Supreme Court in the 1993 case, M. Krishna Swami vs Union of India (which he refers to in his rejection document), that when deciding on admission of the notice of motion, the Speaker “need not weigh the pros and cons and find a prima facie case”.

The Chairman’s role is to ensure that the notice of motion complies with the requirements of the law, not to read into the law requirements that are not in it. The Chairman has usurped the judicial role of the inquiry committee in appreciating evidence. He has also usurped the political role of members in assessing the impact of asking for an inquiry into the five grounds they have identified.

The Chairman erroneously understands the goal of the Judges (Inquiry) Act as being to discourage complaints. He says that the Judges (Inquiry) Act and its Rules “envisage extremely stringent conditions [as] necessary for initiation of [removal proceedings]” and that “all these arrangements are aimed at being difficult and onerous to keep judges independent of any external pressure”.

In the name of safeguarding judicial independence, the Rajya Sabha Chairman has significantly narrowed the ultra thin sliver of opportunity available for enforcing judicial accountability in India. Under the same pretext, the inquiry committee report in the last impeachment proceeding (against a Madhya Pradesh High Court judge on charges of sexual harassment) significantly reduced the scope for removal proceedings by holding that alleged grounds must be proved “beyond any reasonable doubt” rather than at the civil standard of balance or probabilities normally applicable to disciplinary proceedings. The committee reached this conclusion by borrowing from discussions on trials for high crimes and treason in the United States that are not relevant to Indian removal proceedings, which do not follow the U.S. approach.

Judicial accountability

The argument that judicial independence has to be balanced against judicial accountability is a red herring. In any case, that balance cannot, and should not, be found in judicial impunity.

Ground five in the Justice Misra matter shows how judicial accountability is essential to secure and guarantee judicial independence. The only way of knowing whether institutional safeguards have failed and judicial independence is being compromised is through an effective and open regime of judicial accountability that allows complaining and whistle-blowing. That sunlight is the best disinfectant against corruption and abuse and that only wrongdoing grows in darkness has become so axiomatic that it is jarring to hear a leader of a modern and forward-looking India assert in this day and age that complaints against judges must be constrained to protect their independence.

An average of two to three complaints are made and taken up against federal judges in the U.S. daily, as against seven unsuccessful complaints in 68 years in India. Yet, the whole world admires how the U.S. federal judiciary is standing strong, independently, to protect its Constitution, the rule of law and marginalised minorities and immigrants against an often renegade President whose belief in the rule of law is not his strongest suit.

If there was a global ranking for “Ease of Holding Judges Accountable”, India would score very poorly. The truth is we practically do not have a working mechanism for judicial accountability. We are celebrating this year the 50th anniversary of the only system we have for judicial accountability—the Judges (Inquiry) Act. It only fires “atom bombs” (“capital” punishment) and is almost never used. Which common citizen can mobilise 50 Rajya Sabha MPs or 100 Lok Sabha MPs? If you could do that you would neither be a common citizen nor have any problems with the system. We have added the 1993 Restatement of Judicial Values and a 1999 in-house procedure for enforcing it. The current system does not satisfy the daily frustration of citizens who today cannot hold judges accountable for their individual conduct (separate from the appeal and review mechanism for their judicial decisions). In other countries, citizens can pull up judges for everything from discourtesy and incompetence to tardiness. Is not good quality judicial service one of our basic civic rights?

The withering of judicial independence and accountability strangulates remedies even for supreme illegalities. The decision of the collegium on January 10, 2018, conveyed by the Chief Justice of India to the Government of India, could not have been more explicit: “The collegium resolves to recommend that appointments be made in the following order: 1. Mr Justice K.M. Joseph, 2. Ms Indu Malhotra, Senior Advocate.” The law on the matter, laid down by the Supreme Court in the Second Judges’ case, cannot be clearer: “The opinion of the Chief Justice of India… shall be primal. No appointment can be made by the President under Articles 124(2) and 217(1) of the Constitution unless it is in conformity with the opinion of the Chief Justice of India.”

It was, therefore, not lawful for the President to appoint, or the Chief Justice to swear in, Indu Malhotra (with no disrespect to a fine lawyer and individual) before swearing in Justice Joseph without having first obtained a fresh opinion of the Chief Justice based on a collegium decision that Indu Malhotra may be appointed alone or prior to Justice Joseph. These are not trivialities to be brushed aside. The heroic attempt of Indira Jaising, Senior Advocate, to raise this issue before the bench of the Chief Justice was, as reported in the media, shouted down in a paroxysm of outrage at the prospect of questioning the President—as if the dictum rex non potest peccare (the King can do no wrong) is yet to be replaced in the highest court of our sovereign, democratic republic by its opposite idea, “Be you ever so high, the Law is Above You.”

It is a constitutional tragedy that there is today no forum in which a remedy can be sought against this supreme illegality. It will die on the pages of arcane textbooks of constitutional law.

The greater the discretionary power accumulated by and concentrated in judicial office, the greater will be the stakes in judicial outcomes and the greater will be the attack on the independence of the judiciary and on judicial conduct. Insulating the exercise of judicial power from external scrutiny in these circumstances is a sure formula for corruption and impunity because, as many great judges have reminded us, judges are not cut out of a separate human cloth much as they may like to believe they are. There is no other judicial office in a major country with as much concentration of individual, discretionary power with as little accountability as the Indian judicial office. Going forward, power in judicial office must be de-concentrated if ethical judicial conduct is to be maintained.

In a society still dominated by feudal oligarchs, whose power has been diminished in the legislature and the executive by democracy, the judiciary is now the only space through which oligarchs can lay down law and policy in this country without democratic scrutiny or approval. This has become another incentive for powerful vested interests to attack judicial independence. Bypassing democracy in making law must be seen as unethical judicial misconduct.

Globally, attention to issues of judicial conduct—based on the three pillars of judicial independence, impartiality and integrity—and judicial accountability are of relatively recent origin. Institutional and normative intensity of the ideas and principles of judicial conduct and accountability have been developing rapidly in the last three decades. The Bangalore Principles of Judicial Conduct have got official United Nations recognition and become the global gold standard. India cannot afford to be left behind in this fast developing institutional revolution to strengthen democratic judicial accountability.

India needs a democratic, transparent, people-oriented, state-of-the-art, world-class system for judicial accountability that will strengthen judicial independence and judicial integrity and widen and deepen public trust and confidence in our judiciary. We need a large tool kit to correct judicial misconduct and incapacity in a rational and constructive way, not just a single-weapon (removal from office) armoury. There are many models and much experience across the world. In building a new model, we must keep in mind a key lesson from global experience that judicial accountability cannot be based on self-regulation alone. Voices from outside the legal and judicial system must be given a role in watching over our watchmen. The challenge before us is much more than just fixing up the impeachment system. It is building a modern, democratic, scientific, just and fair judicial system free of the crippling inheritances, myths and hierarchies of feudal and colonial pasts. Young India wants it and will build it. We should not obstruct it.

G. Mohan Gopal is former Director, National Law School of India University, Bengaluru, and National Judicial Academy, Bhopal.

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