Judging the judges

The National Commission to Review the Working of the Constitution comes down heavily on the functioning of the judiciary and suggests measures to check any deviant behaviour of the judges.

"There has been, of late, public concern over judges not observing working hours, being away from court-work even without seeking leave, unduly delaying judgments and otherwise conducting themselves in an un-Judge like manner. It is these few persons whose conduct calls for a disciplinary system so as to preserve the fair name of the judiciary."

HAD these observations been made in media columns, the writer might have invited the charge of contempt of court, given the current trend of invoking the Contempt of Courts Act against even legitimate criticism of the judiciary. The fact that the National Commission to Review the Working of the Constitution (NCRWC) made these in its "Consultation Paper on the Superior Judiciary" has given these comments a certain degree of credibility and legal immunity.

The Commission, which examined the procedure for checking any deviant behaviour of the judges of the High Courts and the Supreme Court, found that the Constitution does not provide for the removal of judges guilty of such behaviour. Clause (4) of Article 124 states: "A Judge of the Supreme Court shall not be removed from 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." By virtue of Article 218, Article 124 (4) applies to the judges of the High Courts also.

The expression "proved misbehaviour" has not been defined in the Constitution. It is left to Parliament to decide what constitutes proved misbehaviour from case to case. Claiming that this has led to an uncertain situation, the Commission has queried whether not observing the court hours and holding the court at one's own pleasure or not delivering judgments for years together do not amount to "misbehaviour" within the meaning of Article 124(4). Similarly, the Commission has also wondered whether judges reserving judgments for years together and leaving the cases undisposed till their retirement or transfer do not amount to misbehaviour. The Commission, however, has said that bribery, misappropriation of funds, commission of serious crimes or crimes involving moral turpitude while in office and acts of treason would certainly constitute misbehaviour.

The Commission has stated further that since the impeachment process has become practically unrealistic, there is a need to evolve standards to determine proved misbehaviour. According to the Commission, the expression "proved misbehaviour" in Article 124 (4) meant committing (a) an act which could be an offence set out in the Prevention of Corruption Act, 1988; (b) an offence involving moral turpitude; and (c) any of the offences under Sections 121 to 124-A, 153-A and 153-B of Indian Penal Code. For these acts, removal of the judge concerned shall be the normal punishment, the Commission has suggested. It has also proposed that other undesirable acts and conduct that are inconsistent with the dignity of the office of Judge of the High Court shall be treated as "conduct unbecoming of a Judge" but not amounting to "misbehaviour". The Commission has stressed the need to prescribe some procedure to deal with this kind of behaviour too.

The Commission has made the following comments on the functioning of the judiciary at present:

"For example, going by reports emanating from respectable quarters, a few Judges of the High Court do not come to court at the appointed hour and do not sit till the hour they are supposed to sit. They come at their own sweet will and rise also at their will. Judgments are not delivered promptly. Case lists are manipulated in the sense that heavy matters are directed to be placed at the bottom of the list and light matters taken up. Lawyers refer to a practice of some Judges directing the listing of particular cases before them without reference to the Chief Justice - and the Chief Justices (who are invariably from another High Court) are quietly acquiescing in the practice because they do not wish to offend any Judge and invite or provoke controversy.

"A few Judges, with an eye on populism, are showing injudicious liberalism in admitting almost all cases and liberally granting interim relief. This not only contributes enormously to the work load in the High Courts but also causes grave prejudice to public interest and administration of justice. In such a situation, it will be unreasonable to be astonished if affected parties, be they private litigants or public bodies, raise eyebrows and even voice muted suspicion on judicial motives. There are some complaints that some judges, even Chief Justices, are not seen to keep a distance from centres of political powers which would be conducive to the image of the neutrality. It is well to remember that judiciary ceases to be an effective instrument if its image and reputation for integrity and independence suffers."

The Consultation Paper, authored by Justice (retd.) B.P. Jeevan Reddy, a Member of the NCRWC and Chairman of the Law Commission, says that a few among the Judges have conveniently forgotten the qualities required of a Judge. Quoting from a tribute to Justice Felix Frankfurter, who retired from the U.S. Supreme court, the paper underlines that Justice Frankfurter's guiding principles were detachment, rigorous integrity in dealing with the facts of a case, refusal to resort to unworthy means, no matter how noble the end, and dedication to court as an institution.

The paper says: "The result of not adhering to the standards is that in spite of increasing the Judge strength, the arrears are rising in several High Courts. Lack of self-discipline and commitment to work among some of the Judges is leading to their disinterest in judicial work. Judges are supposed to work not for salary but to take the office as an honour and as a call of national duty, unconcerned with any other considerations. Though there are not many cases of deviant behaviour, the few that are are fouling the atmosphere."

It says: "According to some legislators/Parliamentarians, and other holders of high executive offices, a 'nice' Judge is one who can be approached by them in matters of their interest."

Another significant observation made by the Commission is that the power to punish for contempt of court has increasingly been seen as a means of suppressing all criticism. But, strangely, it refrains from examining the provisions of the Contempt of Courts Act and suggesting measures to prevent its misuse.

THE paper's contribution to the debate on judicial accountability lies not just in its frank description of the malaise afflicting the higher judiciary, but also in its specific proposals for reform. It proposes that a committee comprising the Chief Justice of India and four senior Judges of the Supreme Court be formed to examine complaints of deviant behaviour of all kinds and complaints of misbehaviour and incapacity. Every complaint, it says, should be supported by an affidavit and should clearly disclose the name, designation and address of the informant or the complainant. According to the paper, the scrutiny of the complaint at this stage would be confined to ascertaining whether (a) there is substance in the complaint or (b) there is a prima facie case calling for a fuller investigation and inquiry or (c) whether it would be sufficient to issue a warning to the erring Judge or give directions to the Chief Justice concerned regarding allotment of work to the Judge or transfer him to some other court.

If the proposed committee finds that the matter is serious and that it calls for a fuller investigation or inquiry, it will refer the matter for a full enquiry to a committee constituted under the Judges' Inquiry Act, 1968. The paper has proposed that this committee should be a permanent one. It has recommended that the inquiry committee's report could be considered by the full court of the Supreme Court, which would then decide the course of action to be taken against the Judge facing the charges. The Judge against whom a complaint is received or an enquiry is ordered shall not participate in any proceedings affecting him. The paper proposes that if the full court decides by a majority to remove a Judge who has been found guilty by the inquiry committee, it should then make a recommendation to that effect to the President who shall pass orders accordingly.

The only case of impeachment proceedings against a Judge since Independence was that of Justice V. Ramaswami. The impeachment motion, moved by the Opposition in the Lok Sabha in 1991, failed to get the support of the absolute majority of the total membership of the House, as required by the Constitution (Frontline, June 4, 1993). The ruling Congress(I) bailed Justice Ramaswami out by abstaining from voting on the motion. The case against him was that he abused his financial and administrative powers during his term as the Chief Justice of the Punjab and Haryana High Court. The case took more than three years to conclude. Justice Ramaswami did not resign, even though he was not allotted any work for the rest of his term.

The paper says that a Judge with any sense of decency and self-respect in him would resign once the Judges' Committee records a finding against him on any charge or allegation. In that case, there would be no occasion for imposing any corrective measure or for recommending his removal. It argues that a political process for removing a Judge as it exists now is not in the larger interests of the judiciary. The procedure suggested by the paper is similar to the one that has evolved in the United States without compromising the independence of the federal judiciary. The paper says that the independence of the judiciary and the security of tenure of the Judges are not a licence for deviant or capricious behaviour.

As the term of the Chief Justice of India A.S. Anand ends this month, questions will doubtless be asked whether the Supreme Court during his term rose to its responsibility in examining various complaints of deviant or proved misbehaviour during his terms as a Judge in the Jammu and Kashmir High Court, as the Chief Justice of the Madras High Court and later as a Judge in the Supreme Court. These complaints were made by responsible and eminent members of the Bar, but the internal corrective mechanism promised by Justice Anand's predecessors proved to be a non-starter. The NCRWC's proposals hopefully would stir a fresh debate within the judiciary on judicial accountability.