Why judges can hold office only during ‘good behaviour’

The accountability of public officials, including judges is the very essence of a mature democracy. Judicial accountability promotes at least three discrete values: the rule of law, public confidence in the judiciary and institutional responsibility.

History has taught us that judicial independence must be tempered with judicial accountability. No one judge can be more valuable than the institution of the judiciary as a whole. But individual judges should certainly be protected against motivated and baseless allegations.

Justice Yashwant Varma of the Delhi High Court, who is widely regarded as an outstanding judge, is facing allegations of corruption due to the alleged video of burnt notes found in his outhouse.

He was away when a fire broke out in the outhouse and it is alleged that the fire brigade, while dousing the fire, saw piles of burnt notes.

In an unprecedented and prompt action, the Supreme Court collegium, led by Chief Justice Sanjiv Khanna, decided to put the controversial video on the apex court's website and ordered an in-house inquiry.

Justice Varma, in the meantime, has been transferred back to the Allahabad High Court, though he won't be given any judicial work.

These allegations are now being used by various political parties to target the collegium system. All political parties are against the collegium system and that's why the NJAC constitutional amendment, the first big-ticket reform of the Modi government, was unanimously passed in Lok Sabha. In the Rajya Sabha, the only dissent was from the legendary Ram Jethmalani.

The political class wants to have its say in the judicial appointments to the constitutional courts and it does not require any rocket science to know why.

Even Vice-President Jagdeep Dhankhar, in the Rajya Sabha on Wednesday, said that had the National Judicial Appointments Commission (NJAC) not been struck down by the Supreme Court, such problems of corruption would not have arisen.

This is too sweeping a conclusion. Most of the appointments in the government are exclusively made by the government, yet we have large-scale corruption all over. Even civil servants who are selected by the most rigorous and fair process through the Union Public Service Commission indulge in corruption.

Leading political leaders directly elected by the people have been involved and even convicted of corruption.

Thus, any debate on the collegium and judicial appointments in the current controversy is irrelevant. The central issue is of judicial accountability in cases of corruption.

As per the K Veeraswami judgment (1991), if the allegation of corruption is against a judge of the Supreme Court, the President of India would order an investigation in consultation with the CJI and if the allegation is against the CJI himself, the President would consult other judges and act on their advice.

Prior to this judgment, the Prevention of Corruption Act was applicable only in respect of public servants, not judges. Recently, Lokpal Justice AM Khanvilkar ordered that high court judges are under its jurisdiction, but the Supreme Court promptly stayed it and is slated to hear this issue soon.

Unfortunately, short of impeachment, we do not have any statutory mechanism to examine the misconduct of judges. There can be motivated allegations as well. Allegations against the Madras Chief Justice PD Dinakaran were made by the Madras Bar only when his name was cleared for elevation to the Supreme Court.

The Judicial Standards and Accountability Bill, 2010, which was passed by the Lok Sabha in 2012, tried to address these issues, but the Bill eventually could not be passed in the Rajya Sabha and lapsed on the dissolution of Lok Sabha.

In any case, the Bill largely dealt with matters like hearing a matter in which a family member of a judge is involved or he/she joins any trade or business or enters a public debate on political questions, etc.

The last unsuccessful instance of impeaching a judge in the United States was in 1805 when Justice Samuel Chase of the Supreme Court was impeached by the House of Representatives, but acquitted by the Senate, though some 60 judges have so far been investigated under the impeachment process.

In England, no judge has been impeached in the last two hundred years or so.

The Indian Constitution protects the judges against the will of the masses or the will of Parliament and the will of the all-powerful executive. It says that a judge can be impeached by both the Houses of Parliament on the grounds of "proved misbehaviour or incapacity."

The impeachment process is basically a political process with members bound to vote as per the party whip. Justice Ramaswami's impeachment motion did fail in 1993 as the Congress party decided to vote against it.

There have been more than one dozen cases of corruption and a couple of cases of sexual harassment, yet no judge has so far been impeached.

A few years back, there was a move by the Opposition to impeach the then CJI Dipak Mishra. But this time, the BJP decided to bail him out. The then Rajya Sabha Chairman, Venkaiah Naidu (former BJP president), rejected the impeachment motion at the introduction stage itself by relying on the minority opinion in the Krishna Swami (1993) case.

In earlier cases, such motions were accepted if they were presented to the Chairman with the requisite number of 50 signatures of Rajya Sabha members.

The judges hold office not only in India but also in Britain and the United States during what may be termed "good behaviour".

The Supreme Court has held that the word 'misconduct' is a relative term and it would connote "wrong conduct or improper conduct." Any allegation of corruption or sexual harassment, if proved, will certainly be a 'misconduct' and, thus, the ground of impeachment.

Currently, if there is a complaint against a judge of the Supreme Court or a high court, the Chief Justice of India nominates an internal committee to examine the allegations.

But even if allegations are proved, the CJI or the President of India does not have any power to admonish, censure, withhold increments or even suspend the judge concerned. He may, in extreme cases, withdraw judicial work.

The in-house process can be initiated only by the CJI. The law is silent if the allegation is against the CJI himself.

The problem with these minor sanctions is, however, that it would be difficult for a judge who has been so admonished or censured to hear matters. And, therefore, to err on the side of caution is preferred.

Views are personal