Restore public trust via a judicial handshake

Ranbir Singh

VC, National Law University, Delhi

THE faith of the people in our institutions of public accountability has suffered several successive blows in the recent past. The criticism of the conduct of the Chief Justice of India from political and judicial quarters has culminated in the introduction of the motion to impeach the Chief Justice by opposition MPs in the Rajya Sabha (RS). The motion now stands rejected by the RS Chairman. The support for the Chief Justice in such testing times has also been vocal, with other SC judges rendering opinions, respecting the majesty recognising the supremacy and primacy of the office of the Chief Justice. Expectedly, the impeachment motion has been criticised for further devaluing the faith of the public in the judiciary and for disrespecting the sanctity of the seldom exercised impeachment process. It is claimed that the process is being abused as a tool for political vendetta rather than intended use for judicial accountability.

The Constitution provides only the skeletal framework for the consideration of a motion for the removal (not termed as 'impeachment') of an SC judge. Power is given to the legislature to define the process of inquiry, between the introduction of the motion by a minimum number of MPs, and its final consideration.

The Judges (Inquiry) Act, 1968 and the Judges (Inquiry) Rules, 1969 provide for multi-layered procedural safeguards which protect a judge from the overwhelming political nature of this process. The Constitution and the 1968 Act do not contemplate upon the validity of reasons for the admission or rejection of such a motion by the RS Chairman, once an endorsement by at least 50 MPs is made.  Only after the admission of the motion, a three-member committee has to be formed, comprising the Chief Justice himself, or, as would be appropriate in this case, a sitting judge of the Supreme Court, along with a sitting chief justice of a high court and an eminent jurist, to examine and inquire into the charges of misbehaviour against the judge. Only if this committee finds the judge guilty of any charge, can the RS pursue the determination of the motion. The inquiry by the committee is a detailed and deliberative process, in line with the honour of the office of a judge. It has no time limit and, therefore, cannot be expected to be rushed. The tenure of the current Chief Justice, however, will come to an end this year in October. However, it is not the outcome of this process which threatens the public trust in the judiciary, but the volatile and political process itself.

The elaborate procedure of impeachment has bruised the legitimacy and legacy of judges before, despite eventual resolution favourable to the judge or absence of resolution by the legislature. On the judicial side, the SC has encountered instances of allegations against judges before, some of which have led to internal disciplinary measures. The judicial precedents in the cases of Sub-Committee (1991), Sarojini Ramaswamy (1992) and Ravichandra Iyer (1995) provide for institutional observations on the process of inquiry, disciplinary action and removal of judges. Interestingly, the judgment in Ravichandra Iyer records a suggestion by Fali Nariman to contemplate upon an inhouse procedure in the case of allegations made against sitting Chief Justice (of an HC). 

Thereafter, the SC devised a method of extra-constitutional innovation to deal with cases of dissatisfaction with judicial members through a resolution in 1997. In a resolution passed in the full court meeting of the SC on May 7, 1997, it was decided that an inhouse procedure would be devised by the Chief Justice of India, giving him centrestage to design the process of taking suitable remedial action against judges who may have failed to abide by the universally accepted values of judicial life, including those indicated in the 'Restatement of Values of Judicial Life'. The Restatement, a detailed code of conduct for judges of the higher judiciary, was subsequently adopted in December, 1999 by the Chief Justices' Conference. Through 16 rules of conduct, the code assisted in the enforcement of a self-regulation mechanism. It advised judges to avoid any act, whether in official or personal capacity, that can lead to the erosion of the faith of the people in the judiciary and judicial officers. However, for the peculiar situation of allegations against the highest judicial officer in the country, the inhouse procedure provides for no effective relief. 

A similar contemplation of procedure in the case of allegations against a sitting Chief Justice of India may have been foregone in light of his supremacy and administrative powers, or because it was the office of the Chief Justice himself, tasked to devise an effective disciplinary mechanism for judges which renders the process of impeachment unnecessary in certain scenarios. 

The legislature only has powers to further define the process of impeachment under the Constitution, and this power may not extend to creating inhouse procedures which may lead to disciplinary action such as withdrawal of judicial work. This power rests exclusively with the Chief Justice himself. The SC, it would appear, has only assumed powers to effectively inquire against sitting judges except the Chief Justice. So, we have encountered a situation that calls for reform within the judiciary, along the lines of the inhouse procedure to avoid such a situation in future. 

The apex court must contemplate a more harmonious solution to inquire and to at least provide an educated opinion into allegations against the Chief Justice. The mere restatement of the supremacy of the Chief Justice by judges and politicians on one end of the aisle would not lead to the end of such controversies. It would only make perception of the rule of law, as personified by the Chief Justice, more suspect. This must be our education from the present controversy. 

A judicial handshake is called for, a mechanism through which allegations and suspicions against judges, including the Chief Justice, are enquired fairly, from within the judiciary, and a conclusive opinion is put before the public. Even if unwarranted impeachment proceedings are initiated, the concrete majesty of the SC should not fall with the wavering majesty of political institutions.

Irrespective of the fate of the political controversy which will not subside in the coming days, the time is ripe to introspect on the doctrine of public trust that each judge in the court is bound to not only individually but also collectively. In Roosevelt's words, "The only limit to our realization of tomorrow will be our doubts of today. Let us move forward with strong and active faith."