PUCL Bulletin, March 2005
Selection and impeachment of judges
-- By K.G. Kannabiran
The constituent assembly did not make any effort to provide guidelines for appointing as judges persons who would be equipped to discharge constitutional obligations. Being a lawyer is not a sufficient qualification to be a judge. Being a lawyer with a large clientele may also not fit the bill. It calls for a philosophical understanding of what the Constitution is all about. A commitment to bring about transformation of society in terms of the Constitution by using their adjudicating and interpretative skills is called for.
How should we appoint our judges and how should they be removed from office? It is widely believed that the answer to these twin questions is crucial for assessing the character of the superior judiciary in the country. People in general know less about courts, the judges who are appointed to this hierarchical structure called the justice system, the way the system operates or the method or content of judges’ functions than they know about the working of the legislative assemblies, or the parliament and the members elected to those bodies.
After the recognition of the right to vote as a fundamental right we have come to know more about our representatives and also about the aspirants. This transparency has enlarged the content of our democracy. Where the judiciary is concerned, at the lower level, up to the level of district judges, there is some understanding of their uses to the people and generally about their jurisdiction to try offenders. As we go up the hierarchy of courts, mystery shrouds appointments, the powers of the appointees and their activity. Yet, it is the high court and the Supreme Court that are always debated about during periods of crisis – internal or external – and when the executive puts the fundamental freedoms in jeopardy. During such periods we are told that the justice system, as delineated in our Constitution, is the index of democratic governance.
After we attained independence we were left with an administration trained to administer colonial interests and a judiciary trained to protect colonial rule against popular struggles with special laws to contain popular protests and revolts. The structure of the high courts and the Supreme Court are testimony to this legacy. In fact, as late as 1964 (re-affirmed in 1986), the Supreme Court opined that nothing changed after the Constitution came into force on January 26, 1950. No new institution was created to herald the change. But we did make some changes with reference to the judiciary. Although we did not adopt the theory of separation of powers fully, the view was that we should have an independent judiciary to prevent arbitrary law-making by the legislature and arbitrary exercise of power in governance. They were designed to be the ‘sentinel on the qui vive’ and protect the rights of the citizens guaranteed in Part III of the Constitution. In practice, however, they were partial to protection of property and biased against personal liberty of the people (confirming and imposing restraints on personal liberty) by parliament. Be that as it may, it was during the periods when the executive introduced laws to abridge property rights on the one hand and imposed restraints on liberty on the other, that a major debate took place on the independence of the judiciary.(1) (footnote)
What was achieved was independence of the judiciary sans the vision required, leading to an erosion of purpose and philosophy in the judiciary. The problem is not one of executive interference in the appointment but the choice of persons with intellectual capabilities to understand the constitutional scheme, the goals, an enthusiasm to mould the law, and interpret it in a manner that would secure the objectives set out in the Preamble to the Constitution, in the process evolving a jurisprudence that will be able to resolve our own constitutional dilemmas. Courts were never intended to be committed to maintain the status quo. And Indira Gandhi was not the first leader of a government to introduce the concept of committed judiciary.
Devoid of vision
Judges in an institution devoid of vision are committed to maintaining the status quo. This state of affairs has more or less come to stay whereby the court staffing pattern ensures that it shall play no role in the country’s affairs in terms of the Constitution. It is this commitment to one’s own career that has been continuously eroding the value system in our society. The aberration of the Best Bakery trial, and the use of the administration of justice as a doormat as the Tamil Nadu chief minister had done are all manifestations of this erosion. Every retiring chief justice cries about the enveloping corruption in the judiciary.
And yet while in tenure, not only do they not do anything, they do not even suggest steps to cleanse the Augean stables. The profession with its value neutral stance, and the consequent tunnel vision enables its members to enjoy the independence it assures without the attendant responsibilities of practicing the profession diligently. Not being saddled with institutional responsibilities or a professional vision committed to constitutional morality, the profession continues to be the only institution which has the license to be amoral in practicing its calling. In such situations the aggrandisement by the professional leaders and corruption in the decision-making process appear to be inevitable. Personal corruption interferes with the decision-making process, thus the much talked-about independence gets eroded much faster than it is realised. And that is why the method and manner of staffing the judiciary at every level assumes importance.
Article 124 (2) of the Constitution deals with the appointment of the judges of the Supreme Court and Article 217 (1) deals with the appointment of judges to the high courts. And all that is said is that the president shall appoint these judges. The judges of the Supreme Court are to be appointed after consultation with such of the judges of the Supreme Court and the judges of the high courts in the state as the president may deem necessary. The chief justice shall always be consulted in the case of a judge other than the chief justice. A judge to the high court shall be appointed after consultation with the chief justice of India, the governor of the state and in the case of appointment of a judge other than the chief justice, the chief justice of the state high court.
Nowhere is the required intellectual caliber or the intellectual standing necessary stipulated for making the recommendation. The debates also do not mention anywhere the qualities and capabilities required for an advocate to be appointed as a judge. A judge either to the high court or the Supreme Court, undoubtedly a constitutional appointment, has enormous powers that can be uncritically exercised and the interpretive authority entrusted to them has destructive potentialities. E Cahn points out that the best and worst propositions of social ethics, politics and law will not preserve us if men who apply them are themselves philistines and mediocrities, even affable mediocrities. Nothing earthly can preserve us without sharply improved human qualities of leadership and citizenship.2 (footnote)
Ralf Dahrendorf is yet another who stressed the importance of the personal qualities of the incumbents in enhancing the prestige of institutions. It is very often said that a few stray sheep cannot unmake an institution. It is not realised it is the silent sheep that unmake an institution.
After so many years of almost inaudible criticism about the conduct of judges, in 1992 a resolution was passed in the chief justices conference held at New Delhi on September 18 and 19 where it was resolved to restate the pre-existing and universally accepted norms, guidelines and conventions, reflecting the high values of judicial life to be followed. A committee was appointed by the CJI to submit a draft of the restatement of values that should guide their conduct whether in office or in their personal lives. The draft came up for consideration and was approved by the full court of the Supreme Court and a resolution was passed, adopting the Restatement as binding on the judges.
The Restatement empowers the CJI to take action against errant judges for violating its provisions. It reads:
The judges of the high court should make a declaration to the chief justice of their high court, assets standing in their names, standing in the names of their spouses and other dependents. The chief justice shall file a similar declaration for purposes of records. The declarations so made are treated as confidential.
No judge shall contest for any position in a club or any other association.
He can, however stand for an elective post in any association or society connected with llaw.
[No judge shall have] close association with members of the Bar, particularly who practice in the same court. No member of his family whether a spouse son/s sons-in-law or other close relative-being in the profession should appear before him or in the court presided over by him or be associated with a case to be dealt with him.
No judge should deal with a case in which his family or a close relation is interested or concerned.
A judge shall not enter into a public debate or express his views in public on political matters or on matters pending or likely to arise for judicial determination.
A judge should allow his judgments to speak for themselves, and he shall not campaign their correctness in the media electronic or otherwise. He shall avoid media interviews.
A judge shall not accept hospitality or gifts excepting from his family, close relations and friends.
He shall not hear and decide cases of a company in which he holds shares unless he discloses his interest and if no objection is raised he can proceed to decide the matter.
A judge shall not speculate in shares and stocks.
A judge shall not engage in any trade or business either by himself or with any other person.
A judge shall not indulge in any activity of fund-raising for any purpose and this will include his accepting contributions.
A judge shall not seek any financial benefit in the form of a perquisite or privilege attached to his office unless it is clearly available. In case of doubt the CJ has to clarify.
A judge should be conscious that he is constantly working under public gaze and he shall not commit any acts of omission or commission unbecoming of the high office he is holding and the public esteem in which it is held. That was why he is advised to practice a degree of aloofness consistent with the dignity of office.3 (footnote)
These have remained mere moral aphorisms to which few may pay lip-service. A soliloquy of the CJI! A CJ of the high court is not superior to the puisne judge. He is only a first among equals. The ostensible subservience one witnesses is a way of getting on in life. The high court is not administratively subordinate to the Supreme Court. The ostensible subordination one witnesses is for reasons of expediency. Such relationships were brought into existence in the belief that, holding such high constitutional appointments the incumbents will acquit themselves with responsibility. The Restatement of Judicial Values is itself a recognition of deteriorating standards.
Thomas Jefferson complained about the Federalists in a letter “by a fraudulent use of the Constitution, which has made the judges irremovable, they multiplied useless judges merely to strengthen their phalanx”. Jefferson was carrying on a debate with his adversaries. We are in much the same position though adversarial politics has nothing to with the deterioration. It is about the staffing pattern by the superior judiciary in the high courts and the Supreme Court. It is about independence of the judiciary in the real sense and not in the formal sense. Independence of the judiciary has been reduced to a fetish and guarding this independence in the outer ramparts is the contempt power of the court, often quite arbitrarily exercised. The Second Judges Case,5 where nine judges sat and liberated the court from the trammels of the executive has no mechanism to appoint persons to judgeships of persons who have an understanding of the constitutional vision and philosophy. That, I believe, is the minimum requirement.
A new struggle for independence
The earlier struggle for independence of the judiciary was avowedly for protecting property and business interests. There is a necessity to start a struggle for independence of the judiciary to protect the right to life of the poor, the socially and economically deprived, and the underprivileged and when this happens the institution can be said to be democratic. As it is structured it is the inheritor of the colonial tradition, super imposed by upper caste dominant culture. That the personal element of the persons chosen has not been discussed and considered in the famous Second Judges case which appropriated all the powers interpretively cannot be disputed. In this case they say that the executive in one form or the other is the single largest litigant before the courts, and in this view of the matter, the judiciary is the principal mediating factor between the people and the executive. The dispute in this case is on account of a crisis in the relationship between the executive and the judiciary.
There was no imminent erosion or attempted erosion of the independence of the judiciary. It was by way of abundant caution that the decision was rendered. They say that the CJI is the pater familias of the Indian judiciary. In another case the Supreme Court was likened to the Vatican and the CJI to the Pope. And he is the person who guards the integrity and independence of the institution. And in that capacity he evaluates the merit of the candidates with regard to his and (occasionally appointed) her legal ability, etc, and offers his opinion. There is no necessity to question his opinion or whet his recommendation by any other person or authority, for such a procedure interferes with the independence of the judiciary. This reasoning proceeds on the basis that the chief justice of the high court and the CJI have the wherewithal to know and assess the worth of the candidates and their suitability to hold the position of judges in the high courts as also the Supreme Court. All this exercise is meant to do is to eliminate political influence, which may sully the independence of the judiciary at the very threshold.
In this approach they assumed they alone are competent to talk about independence of the judiciary and how to bring about such independence and prevent its erosion. They therefore presume they alone know how to pick up the qualified among the lawyers to be appointed as judges. They were for a long time under the mistaken impression that the executive alone is interested in destroying the independence of the judiciary. They have not yet recognised the erosion of independence wrought by litigants by playing upon caste and religious sentiments. Downright corruption, making dispensation of justice a marketable commodity, is also a threat to the independence of these institutions. These reasons have made Rule of Law a fugitive which, with the kind intervention the Supreme Court has had to make, had to take shelter in neighbouring state courts.
The system, as it existed, was of elevating persons to the high court on the basis of impressions of the high court judges about lawyers practising in their courts and/or on the basis of the ruling party’s selection of lawyers for elevation and very often this practice resembled some barter like transaction between the executive and the judiciary. The ruling party’s nominee was also elevated along with the judge’s choice for elevation. This exercise in consensus worked until Indira Gandhi wanted a loaded judiciary. The smooth working of the mechanism was ruptured because of the executive insisting on its candidate or a stubborn judge refusing to yield to the machinations of the executive.
This is because from the beginning there was no transparency in selecting persons for elevation, and the manner in which judges were elevated was never democratic. The method of appointing judges was quite arbitrary and was entrusted to a small oligarchy. The president consults the CJI and the CJ of the high court for appointment to the high court and elevation to the Supreme Court.
The constituent assembly did not provide guidelines for appointing as judges persons equipped to discharge constitutional obligations. Being a lawyer is not a sufficient qualification to be a judge. Being a lawyer with a large clientele may also not fit the bill. It also calls for a philosophical understanding of what the Constitution is all about. A commitment to bring about transformation of the society in terms of the Constitution by using adjudicating and interpretative skills is called for. The other person who deals with the personal requirement of the persons who staff these institutions is Ralph Dahrendorf.6 According to him, and rightly so, institution-building requires primary attention in democracies. While democratisation may lead to extensive participation, this itself creates its veto group and to make this democratisation meaningful there is a necessity for restructuring the institutions of democracy. Where institutions are staffed by the elective process they can be reformed by the process of election or by subsequent legislation.
The restructuring of other constitutional appointees like the judges and courts is very cumbersome and very often unyielding to sense, unwilling to give up their feudal trappings and, in India, the opaque ways of functioning inherited from the British. The opaqueness of the British method of appointment was because they had no obligation to share with the subjects the process of staffing these institutions, in fact any institution. But that process ill fits a democracy consisting of several crores of citizens with fundamental rights, including the fundamental right to vote. That is why Dahrendorf says that institution-building should begin with first principles: “Democracy is about seeking progress in a world of uncertainty. Its Constitution must make change possible, but move it away from the arbitrary acts of the few. This means it must create conditions for initiative but also for control and both must be related to the rights and interests of the citizens.”
After liberating them from the regulation of authoritarian interference and control, the real issue remains as to how one encourages initiatives and retains control in the functioning of these institutions. Lack of norms at the time of entry admits people who have never even paid lip-service to norms that have been stipulated or implied. There are people admitted to these institutions who feel that their idea of what is good for the people, without reference to constitutional values and laws passed in furtherance of those values, may not yield to the collective wisdom reflected in the Constitution. Thus one will find the enervation of the Constitution, while interpreting laws pertaining to violence on women, the laws pertaining to dalits, or the interpretation of liberty in the succeeding decades after Gopalan, the Best Bakery case in the high court and later in the Supreme Court, the corruption charges against Jayalalithaa. Part of this impotence is manifested in the failure to innovate reliefs to assure people that rule of law and democracy will stay and that chief ministers will be the fugitives and not the rule of law.
And what shall we do with the errant judges?
This question remains unanswered. The institution is avoiding facing the issue on a very misleading premise that debating these issues might bring down the prestige this institution enjoys and disable it from a proper discharge of its constitutional obligations. An elected appointee is only removable from office by impeachment as provided in Article 124 (4) of the Constitution. A judge who is charged with misbehaviour has to be arraigned in each house of parliament by an address in each house and the voting for removal is cumbersome ensuring failure of voting recess. While parliament sits as the high court against these high constitutional appointees, its decision is partisan, the party whip controlling the result.
We have witnessed this spectacle in the course of the impeachment of the Tamil Nadu judge Ramaswamy. There is, in the case of a whip, only a collective decision without either a collective or individual application of mind to the issue of misbehaviour of the judge in the dock. This arraignment before parliament has to be preceded by an investigation in accordance with the provisions set out in the Judges (Inquiry) Act 1968. The proposal should have the support of the majority of the house with two-thirds majority in each house present and voting. As a judge can be tried for misbehaviour his tenure can only be a tenure on good behaviour. It cannot be anything else. Unfortunately, the cumbersome disciplinary proceeding can only be on proven misbehaviour. This is too comprehensive an expression and when undefined it gives licence to regular misbehaviour of various grades leading to an erosion of norms rendering the institution useless for constitutional purposes. Tenure to last till the persons reach the age of superannuation is subject to good behaviour.
The misbehaviour results in termination of the office. The judges are not even aware that their term is not so completely protected as they imagine. They should realise that it is not the cumbersome procedure for their impeachment that protects their tenure. Their tenure is conditional upon good behaviour, irrespective of the age of their superannuation. The first time the attempt at impeachment failed because parliament did not function as the high court of parliament. Issuing a whip to control the voting in impeachment is an injudicious and arbitrary exercise of power by a body, which claims to run a democracy. The second time such an approach to judicial proceedings of the parliament may not succeed because there is, I believe, a mood to restructure institutions. How to control, short of impeachment, the ever-increasing misbehaviour?
The only way out found by the Supreme Court was to transfer undesirable judges from one high court to another, taking care to inform the public that there is no stigma attached to these transfers. Even campaigning for impeachment to secure the 100 signatures of the representatives of the people can be viewed as contempt. The strategy is to overawe the public at large by increasing the power of judges to proceed against the contemner. This is not going to help matters and it will lead to a more and more brazen response of the incumbents. This will leave the institution fe stering. People are paying a very heavy price for maintaining the independence of the judiciary, where it is made into a fetish, preventing any attempt to cleanse the institution.
Impeachment for misbehaviour is in fact a process, which is impossible to achieve under the procedures now prescribed. It appears to be a most inefficacious remedy one can think of. The US experience is no different. Raoul Berger in his treatise on impeachment quotes the opinion of senator McAdoo after the conviction of Judge Halstead Richter: “the nature of the process is such that, as evidenced in the recent proceedings, it seriously interrupts for long periods the necessary transaction of important legislative business, places an intolerable burden of hearing and weighing testimony upon senators already heavily charged with the responsibilities, and for this reason alone is always resorted to with extreme reluctance even in cases of flagrant misconduct.” 7 He goes on to say that this gives an assurance that the errant judges will never be visited with impeachment which is a standing invitation for judges to abuse their authority with impunity and without fear of removal. Woodrow Wilson described impeachment as “an empty menace”. The Congress was, said some, willing to suffer a misbehaving judge.
In earlier periods of constitutional history, both in the US and UK, a judge’s term was pleasure tenure and removal presented no problems. It was felt that when power was granted to be held during good behaviour, to carry the law into execution the English law provided for a proceeding to forfeit the office by a writ scire facias. This practice was used to repeal a patent in case of forfeiture. This remedy was used to protect offices held during good behaviour by persons under Royal patent (appointment) to protect them from arbitrary removal. Since then in the UK the writ scire facias was available for the removal of judges for bad behaviour. The termination of office on bad behaviour may be an instrument of checks and balances in a parliamentary and presidential system, but the citizen too has a fundamental right to clean governance in institutions and the remedy to repair these institutions is necessary as an innovative alternative relief, which does not invite executive invasion, and thus also preserving the independence of the judiciary.
It is time we gave some thought to re-defining the ‘independence of judiciary’. There should be a legislative mechanism to set the limits of good behaviour by defining misbehaviour. The definition would inform every judge what constitutes the removable cause. In such a definition as Raoul Berger sets out that as the removal of judges may be controversial, it may be useful to tighten and clarify the definition and entrust it to a special court comprising a committee of judges. The Constitutional Review Committee in its report March 31, 2002 in Chapter 7 deals with the removal of judges. It recommends the establishment of a National Judicial Commission.
A committee comprising the CJI and the two senior-most judges are to inquire into the complaint and convey their views to the president who, shall on the basis of the report, cause a detailed investigation into the complaint and refer it for hearing and adjudicating by a bench of seven judges of the court. Impeachment may be reserved for misbehaviour of a serious nature affecting national interests. The investigation should be completely divorced from the function of hearing and judging. The fact that the judges alone will try the erring judge should be a safeguard to the independence of the judiciary.8 Continuing a judge found to be guilty of deviant behaviour by transferring him to another high court is unethical and highly objectionable. How can a judge found guilty of misdemeanour be foisted on the litigant public of another state? No option to resign should be given to those found guilty of misbehaviour.
How should one select our judges? There is extensive campaigning for the setting up of a National Judicial Commission, under the Constitution (Ninety-Eight) Amendment Bill 2003, which suggests the setting up of a National Commission consisting of (a) the CJI of India; (b) two other judges of the Supreme Court, next to the CJI in seniority; (c) the union minister in charge of law and justice; one eminent citizen nominated by the president in consultation with the prime minister. The last is a homage to democracy. The second one is by the judicial accountability committee comprising prominent lawyers and constitutional experts located currently at New Delhi. The National Judicial Commission recommended by them consists of the following: (a) the chairman shall be appointed by a collegium consisting of all the judges of the Supreme Court; (b) one member is to be appointed by the collegium comprising all chief justices of the high courts; (c) one to be nominated by the union cabinet; (d) one member to be appointed by the leader of the opposition; in consultation with other opposition parties in both houses; (f) one member recommended by the collegium comprising all the members of the Bar Council of India.
The government, of course, did not bother about the representative status of the body recommended by it. There is a large population of lawyers who provide the staff for the judiciary, from the magistrate at the lower level to the judges of the districts, high courts and the Supreme Court, apart from the tribunals for various purposes at various levels, and it is odd this 10 lakh and odd population is not even given consultative status. They are members of Bar Associations, which are working as professional bodies in every nook and corner of the country wherever there is legal work to do. It may not be difficult to work out a consultative status in the matter of appointment to higher judiciary. At the lower levels, there are methods to test competency while it is at the higher levels that there is no such test.
As I often say, we get good and competent persons by culpable oversight. Entrusting responsibility will discipline the profession and will give meaning and vision to their independence. The effort should be to announce the names of the contenders to the office. Their appointment need not be shrouded in opacity.
– K.G. Kannabiran
Address for correspondence: firstname.lastname@example.org
1. Golaknath AIR 1967 SC 1642; Keshavananda Bharati AIR 1973 SC 1461.
2. E. Cahn (1967) ‘Confronting Injustice’ in Lord Lloyd of Hampstead, Introduction to Jurisprudence, fourth edition, edited by MDA Freeman, Steven and Sons, London, 1979.
3. V.R. Krishna Iyer (2001), Off the Bench.
4. Wallace Mendelson (1987), Supreme Court Statecraft: The Rule of Law and Men, Asian Books, New Delhi, p 219.
5. Second Advocates on Record Association, AIR 1994 SC 268.
6. Ralf Dahrendorf (1985), Law and Order (The Hamlyn Lectures), Steven and Sons, London.
7. Raoul Berger (1974), Impeachment: The Constitutional Problems, Harvard University Press, Cambridge, MA, p 167.
8. Ibid, pp 173-77.
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