Need of the Hour: Corrective Action to Discipline Higher Judiciary

Recent instances of ‘alleged’ wrongdoing by the judges calls for setting up a panel to monitor such cases.

In the 68 years that have passed since the adoption of the Constitution of India by the Constituent Assembly on 26 November 1949, the Supreme Court and some state High Courts have been making great strides in preserving the constitutional values of equality, liberty and justice.

After all, it is the higher judiciary, as the arbiter of constitutionality, which has always come to an ordinary citizen’s rescue when both legislature and executive failed to honour their constitutional limitations.

Of late, however, allegations of corruption by some judges on India’s top courts have hugely damaged the public perception of the higher judiciary as being free and fair in dispensing justice.

Are Judges Above the Law?

Take, for instance, the allegations of corruption made against Justice Mohit Shah, former Chief Justice of the Bombay High Court, by the family of deceased BH Loya (the CBI special judge who was hearing, before his death in Nagpur in December 2014, the high-profile Sohrabuddin Sheikh fake encounter killing case involving Bharatiya Janata Party president Amit Shah).

A story published in magazine The Caravan quotes Judge Loya’s sister, Anuradha Biyani, as stating that Justice Shah had offered Loya a bribe of Rs 100 crore to hand down a judgment in favour of Amit Shah. Now, we can all question why Loya’s family did not come out in public earlier with all the facts and evidences, but in doing so, we would be missing the woods for the trees.

Readers will recall that,in 2014, when Markandey Katju, former judge of the Supreme Court, revealed that three former Chief Justices of India (one of whom was himself facing serious allegations of corruption) had colluded with the then government in extending the term of a corrupt judge in the Madras High Court, he was put in the dock for not coming out in public earlier on the matter.

In fact, two senior lawyers, Ram Jethmalani and Soli Sorabjee, went a little further and questioned why Justice Katju hid behind some unwritten protocol of conduct, while he could have instead shown “moral courage” and resigned from his office so as to enable himself to make the facts public at the time when the wrongdoing so alleged by him to have happened had happened. In the process, the much-needed debate on tackling corruption in the higher judiciary got sidelined.

Reasons Behind Error of ‘Judgment’

It does not take an expert of political jurisprudence to grasp the fact that judges, like other human beings, are prone to errors of commission and omission, and while courts as institutions may be sacrosanct, those participating in the justice delivery system – including lawyers and judges – do sometimes have their own interests (legitimate or illegitimate) to protect. After all, the Constitution-makers themselves foresaw that not always can a judge be immune from misbehaviour (which includes corruption) and set out an impeachment procedure to drive misbehaved judges from the bench.

In the Indian context, there are several reasons why a judge may compromise his integrity and succumb to political or other extraneous pressure. Take for instance, the prospect of a post-retirement job. A recent paper co-authored by Madhav Aney finds that “deciding in favour of the government is positively associated with the likelihood with which judges are appointed to prestigious post-Supreme Court jobs.”

Titled Jobs for Justice(s): Corruption in the Supreme Court of India, the paper, which was published by the Indian Statistical Institute in 2013, suggests:

The prospect of being appointed to government positions after retirement could be a way in which the executive exercises control over an otherwise independent judiciary, in countries with judicial term limits.

No Mechanism to Deal with Complaints

While it will be absurd in the absence of any strong evidence to allege that judges are rewarded for “fixed decisions” by the powers that be, there are numerous examples to suggest that the higher judiciary works with a nearly absolute impunity and allegations of corruption are either met with a deafening silence or are rejected prima facie, by politicians and the media alike.

Likewise, it will be naïve to actually suspect a judge against whom an allegation of corruption is made to be in fact partial or corrupt. But, if a rational person (especially someone who has an interest in the case in reference to which an allegation is made) so suspects a judge, then we not only have an obligation to appreciate the legitimacy (if not the truthfulness) of his or her suspicion, but also have a duty to alleviate that suspicion through lawful means.

This is primarily because constitutional courts enjoy and exercise enormous powers under the Constitution of India and command significant moral authority (such that the people of India relate to their judgments and accept them as right, just and fair even if they are adverse), and there is no scope for even a suspicion of misconduct, let alone proved misconduct. However, judges in the higher judiciary act with impunity largely because of the lack of a strong mechanism to deal with complaints of indiscipline or misconduct.

A police officer cannot file a First Information Report against a sitting judge of the Supreme Court unless the Chief Justice of India “sanctions” it (and if the FIR to be filed is against the Chief Justice of India himself, then other judges of the Supreme Court must be consulted).

The process that is followed presently to discipline judges is more of an in-house, opaque one, under the supervision of the Chief Justice of India. However, the Chief Justice of India has no power to remove or even suspend a corrupt judge and the only option left to him is to transfer the judge, that is, if he is presiding judge of a high court. And although the Constitution provides for an impeachment process to remove judges of in the Supreme Court and state high courts, the whole process is highly cumbersome and has not yielded the desired result (not a single judge has been impeached since independence).

Task of Disciplining Brother Judges

India therefore, needs to take three urgent steps if we were to save the higher judiciary from losing the battle for public perception on judicial corruption. First, the provision for removal of judges on grounds of “proved misbehaviour” and “incapacity” as set out in Article 124(4) of the Constitution needs to be amended (along with corresponding amendments to Judges Inquiry Act, 1968).

The procedure, which is both cumbersome and political, is an ancient concept borrowed from the UK and US legal systems and is not fit for today’s time and age. Since independence, impeachment proceedings have been launched against several judges but the judges resigned before they could be impeached to avoid the stigma attached to impeachment. The provision that enables a judge to resign pending impeachment proceedings needs to be scrapped.

Next, we urgently need a disciplinary statute modelled on the US Judicial Councils Reform and Judicial Conduct and Disability Act, 1980. The Congress government did introduce a Judicial Standards and Accountability Bill (which lapsed after the dissolution of the 15th Lok Sabha in 2014), but the bill had some fundamental flaws and was rightly criticised as being a “cure worse than the disease”.

The statute must be carefully drafted to ensure that the executive or legislature has no role to play in disciplining the judiciary because judicial independence would best be served if judges took the task of disciplining their brother judges unto themselves. However, this must be done transparently and not under a veil of secrecy.

Setting Up a Panel for the Errant Judges

One way to achieve this is by setting up a committee comprising the Chief Justice of India and other senior judges of the Supreme Court to hear complaints relating to judicial misconduct. The Committee, which will function as an alternative to the impeachment procedure, will examine allegations (and evidences, if any) of misconduct received by the complainant and the concerned judge shall be given an opportunity to defend himself, which means that frivolous or vexatious complaints will be rejected outright.

In case the Committee is satisfied (based on materials placed on record) that a complaint was filed with the sole objective of deliberately maligning a judge's reputation, the complainant can be fined or otherwise penalised. All proceedings shall be confidential and the Committee must ensure that no conflict of interest exists between its members.

In the event that a complaint is found to be true, the Committee must publicly announce the name of the erring judge, suspend him or her, and initiate legal proceedings followed by appropriate action. Serious cases of proved misconduct must be reported to the Parliament for impeachment.

Redefining Criminal Contempt

Finally, the law on criminal contempt needs to be narrowed down because the power of contempt as well as the manner in which that power is currently being exercised is both arbitrary and unfair.

The current definition of criminal contempt under the Contempt of Courts Act is extremely vague and provides courts of record the leeway to interpret it broadly and cover even those cases that would otherwise fall outside the purview of criminal contempt law. The law must clearly define criminal contempt to exclude fair criticism of the judiciary or honest complaints about judicial misconduct.

In fact, even if truth is now a defence under the Contempt of Courts Act (not to forget, truth as a defence is conditional and not an absolute one), the Supreme Court has held that the power of contempt flows not from the Contempt of Courts Act but from Article 129 of the Constitution and therefore is nearly absolute, which implies that the power overrides the fundamental right to freedom of speech and expression guaranteed under Article 19(1)(a) of the Constitution.

Constitutional courts must realise that the moral and legal authority that they assume and enjoy flows not from the unbridled power to punish contemnors but from their impartiality, integrity, fairness, and discipline.

Dr. B. R. Ambedkar’s words of wisdom from his address to the Constituent Assembly on adoption of the Constitution on November 25, 1949, ring true:

Because I feel, however good a Constitution may be, it is sure to turn out bad because those who are called to work it, happen to be a bad lot. However bad a Constitution may be, it may turn out to be good if those who are called to work it, happen to be a good lot.

We have had and continue to have men of wisdom in black robes in India’s top courts, but there are a minority few who have brought disrepute to the whole institution and urgent steps must be taken to ensure that the later lot are driven from the bench.

Constitutional courts act as guardians of the Constitution of India and of rights and freedoms of citizens and judges will be in breach of trust of the citizens if they fail to guard the constitutional values and directives that are dear to our libertarian democracy. Judges must be reminded of Friedrich Nietzsche's warning:

Whoever fights monsters should see to it that in the process he does not become a monster. And if you gaze long enough into an abyss, the abyss will gaze back into you.

(The writer is a lawyer and legal academic. He tweets at @ashish_nujs. This is a blog and the views expressed above are the author’s own. The Quint neither endorses nor is responsible for the same)

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