Not above the law

Print edition : May 24, 2019

Justice Ranjan Gogoi taking oath as the Chief Justice of India at the presidential palace in New Delhi on October 3, 2018. Photo: CHANDAN KHANNA/AFP

The Supreme Court of India. In-house proceedings in the Supreme Court, action under the Vishakha law and informal interventions are not a substitute for criminal investigation and prosecution. Photo: SHIV KUMAR PUSHPAKAR

Judge Samul Kent. In May 2007, a woman employee of the Federal District Court in Texas filed a judicial misconduct complaint against the judge.

Sir Stephen Richards. He was arrested in January 2007 and relieved of judicial duties. Photo: Getty Images

Justice Lionel Murphy. He was tried and convicted of the crime of “attempting to pervert the course of justice”. Photo: Wikipedia

International experience shows that ensuring ordinary criminal accountability for judges for crimes they are alleged to have committed will strengthen the judicial institution.

“IN the eyes of God, there is no sin greater than a king’s sin,” says the well-known 11th century “Book of Government” of Nizam al-Mulk, directly contradicting the ancient Roman principle “Rex non potest peccare” (the king can do no wrong). The “Book of Government” records the elaborate procedures adopted by Persian kings to ensure that complaints against the king are freely and publicly expressed, publicly heard and adjudicated independently by judges. The book describes how kings would remove their crowns and submit to this process, including the punishment meted out to them. This admonition is even more applicable to judges than kings because it is the judge who decides if the king has sinned. It must follow then that the only sin greater than a king’s sin—the greatest sin of all—is a judge’s sin and “there is no sin greater than a judge’s sin”.

If a judge’s sin is to be deterred, it must be publicly exposed like the king’s sin, and the judge must be held accountable like the king. For this, even more importantly than for kings, complaints against judges need to be freely expressed, without trepidation or intimidation, heard independently, and appropriately decided in accordance with the law.

There is, therefore, no greater threat to the judiciary and to the well-being of a society than silencing complaints against judges. Conversely, there is no greater strength for the judiciary than judges submitting to the same law that they apply to the citizenry. Needless to say, as Nizam al-Mulk says, if anyone makes any false accusation without proof, they too ought to face deterrent punishment. There is much evidence for this common sense proposition in countries that have a strong tradition of democracy, the rule of law and independence of the judiciary. Here are three illustrative and famous examples.

The British case

On October 25, 2006, the British Transport Police received a complaint from a young woman passenger that she had been sexually harassed while travelling in a commuter train—a man standing next to her had indecently exposed himself to her on October 16 and again on October 24, 2006. The complainant took his pictures on a mobile phone and picked him out at a video identity parade. The suspect was soon identified as Lord Justice Sir Stephen Richards, a Lord Justice of Appeal (Judge of the Court of Appeals) from 2005, member of the Privy Council and one of the United Kingdom’s senior-most judges.

After the matter was investigated further, Sir Stephen was arrested in January 2007. He was relieved of judicial duties. He was charged and put on trial in the magistrate’s courts on two counts of “intentionally exposing his genitals intending that someone would see them and would be caused alarm or distress”. Sir Stephen denied the charges. In June, 2007, he was acquitted by City of Westminster magistrates on the basis that under the circumstances (including the absence of CCTV evidence) it was impossible to be certain he was the same man who had exposed himself to the complainant. Chief Magistrate Timothy Workman, sitting with two lay magistrates, expressly acknowledged that the complainant gave “clear, dignified and truthful” evidence. After his acquittal, Sir Stephen returned to his judicial duties. Some three years later, in May 2010, Sir Stephen was again arrested by the British Transport Police on a separate complaint by another young woman, a foreigner, who said that in September 2009 “a man rubbed himself against her in the commuter train carriage and that she screamed out to tell him to stop”. After reviewing the evidence gathered in the investigation, the U.K. Crown Prosecution Service decided not to proceed with the case because “there was not a realistic prospect of conviction”. Sir Stephen became Deputy Head of Civil Justice in January 2013 and retired from the judiciary in February 2016.

A statement issued by the British Transport Police after Sir Stephen’s trial was over said: “While this case has attracted a great deal of publicity, the transport police have treated this case as they would any of a similar nature, no matter who the defendant.” And the powerful judicial system did not come in the way. What this meant was that the first person the police acted against in London was the accused judge, not the complainant.

Was the independence of the British judiciary diminished, its reputation tarnished or public faith and confidence eroded by criminal accusations being publicly made against a Lord Justice of Appeal and his being arrested, not once but twice? Absolutely not. Was the British judiciary so fragile that the removal of Sir Stephen from judicial work while he was being investigated and was on trial would alter the way cases would be decided by the Court of Appeal? Absolutely not. Equally competent judges would fill his spot for as long as needed. To the contrary, was the reputation of the judiciary and the public trust and confidence in the judiciary enhanced by the spectacle of one of the most senior judges of the country standing trial before a chief magistrate and two lay magistrates? Resoundingly, yes.

The U.S. Case

Here is an example of how judges’ sins are dealt with in the United States, even in Texas where pertinacious antebellum feudalism is still in the air.

In May 2007, a woman employee of the Federal District Court in Texas filed a judicial misconduct complaint against Judge Samuel Kent, the judge of the court (federal court judgeship is a powerful and senior judicial position in the U.S.; appointments to these positions are for life). The complainant alleged that “the judge attacked me in a small room that was not 10 feet from the command centre where the court security officers worked. He tried to undress me and force himself upon me while I begged him to stop. He told me he didn’t care if the officers could hear him because he knew everyone was afraid of him. I later found out just how true that was. He had the power to end careers and affect everyone’s livelihood. I had already reported his behaviour to my manager. She knew about the assaults from the very beginning. The last assault I had was more terrifying and threatening than ever before. After forcing himself upon me and asking me to do unspeakable things, he told me that pleasuring him was something I owed him.” Judge Kent’s secretary, also an employee of the court, filed a separate complaint that between 2001and 2007, Judge Kent “sexually assaulted her by touching her in her private areas against her will and by attempting to cause her to engage in a sexual act with him”.

The complaints were promptly taken up by the federal judiciary, which appointed a Special Investigative Committee to inquire into them in accordance with the law. Separately, the Federal Bureau of Investigation and the Department of Justice commenced criminal action against the judge. In August 2008, a grand jury indicted Judge Kent for abusive sexual contact. In February 2009, Kent pleaded guilty to obstruction of justice and non-consensual sexual contact with one complainant and unwanted sexual contact with the other. He was convicted and sentenced to a nearly three-year prison term. Separately, Kent was impeached and removed from judicial office by the U.S. Congress. Anticipating further disciplinary action from the Bar, Kent resigned from the State Bar of Texas in April 2009. He is said to have been released from prison in 2011.

Again, was the independence of the U.S. federal judiciary diminished, its reputation tarnished or public faith and confidence eroded by a federal judge being prosecuted, convicted and jailed for sexual misconduct? No. On the contrary, did holding Judge Kent accountable for his crimes in the same manner as ordinary citizens enhance public trust and confidence in and respect for the judiciary and judicial independence? Yes.

Chief Justice Roberts’ 2017 year-end report on the federal judiciary to Congress said: “We have a new challenge in the coming year. Events in recent months have illuminated the depth of the problem of sexual harassment in the workplace, and events in the past few weeks have made clear that the judicial branch is not immune. The judiciary will begin 2018 by undertaking a careful evaluation of whether its standards of conduct and its procedures for investigating and correcting inappropriate behaviour are adequate to ensure an exemplary workplace for every judge and every court employee. I have asked the Director of the Administrative Office to assemble a working group to examine our practices and address these issues.” The review has been done and it is now publicly available, recording the scale and nature of the incidence of the problem of sexual harassment faced in the U.S. judiciary. It would be helpful if in response to recent complaints, the Indian Supreme Court would also commission a comprehensive report on the lines of that produced in the U.S.

The Australian case

Then we have the notorious 1980s example of Justice Lionel Murphy, then one of seven sitting judges of the highest court of Australia (the High Court). Justice Murphy was no ordinary judge. He was a former Senator and Minister, former Attorney General, renowned jurist, darling of liberals, author of controversial judgments and one of the most well-known and influential figures in the legal fraternity of Australia—once described by another Australian apex court judge in a memorial tribute to Murphy as “the electric light of the law”.

The chief stipendiary magistrate of New South Wales, Clarrie Briese, accused Justice Murphy of pressuring him into influencing the examining magistrate in a case in which a lawyer friend of Murphy’s was an accused. On the basis of the accusation, which he strenuously denied, Justice Murphy was tried and convicted of the crime of “attempting to pervert the course of justice” while he was a sitting judge of Australia’s highest court. The New South Wales Court of Appeals quashed Murphy’s conviction on appeal on the grounds that the trial judge had misdirected the jury. Murphy was prosecuted again. The jury acquitted him in the second trial. Whereupon, Parliament opened an investigation against him in May 1986 as a first step of a removal process. Murphy announced in July 1986 that he had terminal cancer. The parliamentary proceedings were discontinued. Murphy died in October 1986, after a dramatic return to the bench for a week in August to pronounce his last judgment.

The independence of the Australian judiciary was not in the slightest diminished, its reputation tarnished or public faith and confidence eroded because one of its apex court judges was prosecuted and convicted of committing a crime. Quite the opposite. The Australian judiciary demonstrated in practice to the people of Australia that the aphorism coined by Thomas Fuller in 1733, “Be you ever so high, the law is above you”, is more than a mere cliche. The action against Murphy is widely believed to have cleaned up the sullied forensic stables of Sydney, until then a hospitable home for shady and corrupt underhand deals. The prosecution of the judge enhanced public trust and confidence in, and respect for, the judiciary. It strengthened judicial independence and helped reform and improve the institution.

Conceptually, misconduct by public officials, including judges, may be addressed by one or more of three distinct tools (as relevant to the facts of the case): criminal prosecution; disciplinary action, including removal from office; and, in cases of personal injury arising from the misconduct, civil proceedings for tortuous damages, subject to sovereign immunity available under the law. While they have mutual linkages, the three tools are distinct and proceed independently. The first is operated by the police, the second by the institution concerned and the third privately by the injured party. None of these tools is a substitute for the other. Criminal prosecution cannot be delayed or avoided because disciplinary action is being taken.

The International Principles on the Independence and Accountability of Judges, Lawyers and Prosecutors of the Geneva-based International Commission of Jurists says: “It is worth distinguishing between judicial accountability for the discharge of professional functions, for which there are clear rules of conduct, and accountability for ordinary crimes judges may commit in their private capacity, for which the applicable rules are the same as for other individuals.”

Lack of clarity in India

Unlike in other jurisdictions, there seems to be a lack of clarity in India about this crucial distinction as well as the distinction between criminal liability of Supreme Court and High Court judges for crimes they may be accused of having committed on the one hand and disciplinary proceedings, including removal from office, on the other (criminal conviction could be the basis for removal for office and to that extent it may deserve precedence). This is notwithstanding the clear statement of Justice K. Jagannatha Shetty in the 1991 K. Veeraswami judgment: “Judges are liable to be dealt with just the same way as any other person in respect of criminal offence. It is only in taking of bribes or with regard to the offence of corruption the sanction for criminal prosecution is required.” However, as a general practice, it seems that criminal prosecution is being avoided with respect to sitting judges (except of course the punishment of Justice C.S. Karnan for contempt of court) even though there is no robust legal basis for such a policy. Some judgments on the issue (including the K. Veeraswami judgment) seem to conflate criminal prosecution with removal proceedings. As we have seen, a judge may be prosecuted but not removed from office and vice versa. In-house proceedings in the Supreme Court, action under the Vishakha law and informal interventions (such as the current three-judge committee) are not a substitute for criminal investigation and prosecution.

The protection of judges from criminal prosecution seems to be justified on the basis that first, any such prosecution will damage the public reputation of the institution and public trust and confidence in it, and second, that false complaints will be made against honest and independent judges to “deactivate” them as suggested recently by the Chief Justice of India Ranjan Gogoi. This concern is heightened by real concerns about widespread corruption and abuse in the exercise of police and prosecutorial discretion.

This may explain why the Delhi Police has not yet acted on the April 19, 2019, letter of a former staff member of the Supreme Court to 22 of its judges (as reported in the media) although it alleges in detail the commission of cognisable criminal offences under the Indian Penal Code (including sexual harassment under Section 354-A (“physical contact and advances involving unwelcome and explicit sexual overtures”) and Section 354 (criminal force to outrage the modesty of a woman). Subsequent media reports indicate that offences under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act (or S.C. and S.T. Act) may also be involved.

The blocking of the ordinary wheels of criminal justice (including timely police investigation) in relation to alleged crimes by superior court judges has grave implications. There will be no deterrence for judges against committing crimes, nor will there be accountability for such crimes. Also, judges will have no incentive to help “clean up” the discredited police and prosecution machinery that have made the process the punishment.

There is often conflict between the interests of individual officials and those of the institution. The judiciary is no exception. As individuals, it is natural that judges may see complaints against them as an attack on the judiciary though there is no evidence that investigation and prosecution of individual judges poses any systemic risk to the judicial institution. On the contrary, ensuring ordinary criminal accountability for judges for crimes they are alleged to have committed would have a salutary and positive impact in strengthening the judicial institution although it would be most inconvenient for judges suspected of wrongdoing.

Rather than come up with ad hoc solutions that favour one party over the other on the complaint of its former employee, the Supreme Court must now ensure that the law takes its own course in an even-handed way, keeping in mind the huge imbalance of power in this case—including criminal law, the S.C. and S.T. Act, the Vishakha law, the Supreme Court’s own mechanism for dealing with sexual harassment complaints, and the Judges’ Inquiry Act, the mechanism to deal with judicial misconduct as a disciplinary issue. As the motto of the Republic says, let truth triumph. By bowing to the law, what international experience teaches us is that the judicial institution will only be strengthened.

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


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