PUCL Bulletin, August 2002

Judicial accountability
-- By Rajindar Sachar

The former Chief Justice of India, S.P. Bharucha, seemed to be echoing the lament in Hamlet, "Something is rotten in the State of Denmark" when he moaned recently that the integrity of about 20 per cent of the higher Judiciary was in doubt. Article 124(4) of the Constitution provides for the removal of a judge only on the ground of proved misbehaviour or incapacity. The process of impeachment is cumbersome and the result uncertain. Effective alternative measures are necessary because in a democracy governed by the rule of law under a written Constitution the Judiciary has been assigned the role of a sentinel on the qui vive to protect the fundamental rights and to hold even the scales of justice between the citizen and the state.

There are credible complaints against the higher Judiciary. People talk with nostalgia of the not-so-distant past when, win or lose, the integrity of the higher Judiciary was never doubted. As the Supreme Court has said, "judicial office is essentially public trust. Society is, therefore, entitled to expect that a judge must be a man of high integrity, honesty and required to have moral vigor, ethical firmness and impervious to corrupt or venal influences."

Hundreds of years ago, Francis Bacon, in his essay on 'Judicature', emphasised that "the place of justice is a hallowed place; and therefore not only the Bench, but the foot pace and precincts and purpose thereof ought to be preserved without scandal and corruption." But such is the irony that Bacon disgraced himself by indulging in acts of bribery and favouritism at the fag end of his career. This highlights the complexities and the sensitivities in the matter of effective, implementation of judicial honesty.

It is correct that the Supreme Court has neither administrative control over the High Courts nor the power on the judicial side to inquire into the misbehaviour of a Chief Justice or a judge of a High Court. But that does not mean the judge is an absolute master, not answerable for his conduct except through impeachment proceedings.

The Supreme Court has ruled that the Chief Justice of India and two senior colleagues on being prima facie satisfied about the correctness and truth touching the conduct of a High Court judge inconsistent with such high office could proceed against him through a process other than impeachment. In such a case, the judge concerned could be offered the option of resigning or facing an inquiry. I know the alternative of permitting the judge to resign when there has been misconduct may seem like taking the soft option, but considering the place of the Judiciary in our Constitutional frame as the bedrock of the rule of law, I would, to avoid public embarrassment, frankly want to vote for this option unless it involves: an open atrocious misconduct which must be publicly disclosed to serve as a warning.

This Enquiry Committee will have the same personnel as is mandated for the impeachment proceedings, so as to inspire confidence about the impartiality of the proceedings. The plus point in this suggestion is that the constitution of a Committee of Judges to inquire into the misconduct could be initiated by the Chief Justice and his two colleagues and need not await the initiation by the Members of Parliament required for impeaching the judge, as mandated by the Constitution.

Such a mode did work when some years back the then Chief Justice of India posed this alternative to a High Court judge and a Chief Justice and they quietly resigned rather than face impeachment... That is why the idea of a National Judicial Commission has been mooted to deal with appointment of High Court and Supreme Court judges and other connected matters. Of course, the details and the personnel of the judicial commission need to be debated. I am however, convinced that the leader of the Opposition must be a member of the panel.

It is to be hoped that a commission will avoid the need for impeachment proceedings. Regarding removal, the Commission would remain a recommending body. Because, notwithstanding all the drawbacks, I am not convinced that removal of a High Court or Supreme Court judge should be through any method other than impeachment. I feel that removal from such high office should be publicly debated by the highest legislature, the representatives of the people, so that an assurance is given to the judge concerned that he is being judged by the people who in a democratic set - up are real sovereigns.

I also feel that the retirement age of the Supreme Court and High Court judges should be the same. If that happens, all this lobbying, etc., will stop because, barring the case of a judge who may have the chance of being the Chief Justice of India, there will normally be no attraction for a High Court judge in trying into move Delhi, which would involve dislocation of his/her family and normal pattern of life.

The appointment of outside judges as Chief Justices of High Courts has failed. I feel this practice must cease because by following it two infirmities crop up. One, that the new Chief Justices mostly hold office for a short period in the new High Court and are not able to make any imprint on their colleagues or the functioning of the Court. This practice also leads to heartburn because some are appointed Chief Justices of the bigger Courts and some to the smaller Courts on no explainable principle excepting as a rule of thumb - hardly befitting judicial objectivity. Two, I am against the policy of non-consensual transfers of judges from one High Court to another. This policy would weaken the bulwark of our Constitution - namely, independence of the Judiciary - for as Justice Douglas of the U.S. Supreme Court said, "no matter how strong an individual judge's spine, the threat of punishment - (read transfer) is the greatest peril to judicial independence -would project as dark a shadow whether cast by political strangers or by judicial colleagues".

I do not underestimate even for a moment the damage some judges have caused to the judicial institutions by their unethical conduct, but damage control will be better done by selective transfer rather through a general policy.
The transfer policy also gives rise to the syndrome of sycophancy and flattery. That is unfortunate because the High Court, like the Supreme Court, represents the same aspects of sovereignty.

If I sound a bit harsh, I can only invoke the caveat of Justice Holmes of the U.S. Supreme Court, who said, "trust that no one will understand me to be speaking with disrespect of the law because I criticise it so freely. But one may criticise even what one reveres... And I should show less than devotion, if I did not do what in me lies to improve it."

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