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When shall the judges be found guilty?
THE CONSTITUTION is our basic law but its abstract Articles and clauses, as such, do not interest us. When applied to cases, they at times create a great flutter, even revolution. Abolition of privy purses demolished feudalism and its vestiges in India. The "Maharaja" no longer invokes the spirit of power and glory. It only serves as a mascot for Air India — unfortunately that too is doddering because of chronic illness. Our laws have sent ministers and high officials behind bars for being corrupt or misusing their authority and office. But our judges of High Courts and the Supreme Court have never been found guilty and thrown out of their high positions.
Shall the judges be ever found guilty of misdemeanour or corruption and misuse of authority and office? Under the present Constitution, it is very unlikely. The removal of a judge is a political matter. A judge can be impeached. But impeachment is carried out by a vote by Members of Parliament. In the case of the judges, the appointing authority is not the dismissing authority. In 50 years of our Constitution, not a single judge of a High Court or the Supreme Court has been removed by impeachment. Common perception is increasingly contrary to the constitutional supposition that all judges are honest and remain so during their tenure as judges whatever be their credentials before or after leaving office as judges.
Will good times continue for the judges even into the 21st century India? Perhaps not. The judiciary has enjoyed impunity from all wrongs under the Constitution for a long spell of over half a century. Now good times appear to be coming to an end and the High Court/Supreme Court judges may not be able to escape punishment for misusing their office or "misbehaviour" or for corruption. Because, the Constitution Review Commission, headed by former Chief Justice of India M. N. Venkatachaliah, has taken cognisance of the Constitution being unreasonably favourable and unequal towards the Supreme Court and High Court judges. In the view of the Constitution Review Commission the lordships appear to be made of ordinary human stuff all men and women are made of and are liable to succumb to temptation and weakness and ought to be exposed to legal punishment in the same manner as all other citizens and incumbents of high office are under the Constitution. The commission has noted that the judges escape the punitive laws for their "misbehaviour" as the Constitution does not define this term as applied to the behaviour of the judges.
Definition of misbehaviour
Article 124(4) of the Constitution proscribes against misappropriation, bribery, committing of crimes of the nature of "moral turpitude," acts of treason and other grave offences. The Constitution Review Commission has proposed that the prohibited acts listed under Article 124(4) ought to be included in the definition of "misbehaviour." A constitutional definition of "misbehaviour," according to the commission, will be a step forward in bringing the judges within the ken of the punitive procedures such as the impeachment. Till such time as "misbehaviour" is defined it may not be possible to punish a judge for any misbehaviour or commission of an offence while being in office and Article 124(4) will remain inapplicable to the case of the High Court and Supreme Court judges. This will open the door of justice to the erring and "misbehaving" judges only slightly. Yet, it would be a step in the right direction because impunity enjoyed by the judges has led to declining standards of conduct, performance and behaviour by the judges. It has been, and remains, one of the biggest impediments for creation and establishment of a civil society in India. The Supreme Court, while interpreting Articles 14 and 21 of the Constitution, has been banking upon the American Constitution and its interpretation in case law. For example Indian Constitution's "procedure as established by law'' is approaching towards the American "process by law." By the same token it would be good for Indian justice to borrow the "process of law" to which American judges found guilty of offences are subjected to, while facing consequences of their unacceptable actions.
Justice Venkatachaliah has had long and first hand experience not only of dispensing with justice but also of dealing with his brother judges. Even during his time as the Chief Justice of India he had expressed his dismay about the tendency of some of the members of the Bench to "socialise" in circles which may lie beyond judicious discretion. Now, as the head of the Constitution Review Commission, he has come out more openly for suggesting ways of curbing indiscipline among his fraternity. Indian Judiciary has produced men of high integrity, learning and ability. Even while functioning within the confines of secluded sobriety of a judge's life, these great judges imparted values of high thinking and living to society at large by their exemplary conduct and behaviour. But, "there have been some exceptions too and in the recent years more such exceptions are coming to light," observes the Constitution Review Commission in its recently released interim report.
Deviant behaviour
The Review Commission is not only concerned about "misbehaviour" and its constitutional definition as applied to the judges but also about "deviant behaviour not amounting to misbehaviour." For instance, lack of punctuality and irregularity in observing working hours; keeping away from work without applying for leave; reserving judgments, at times for years; jumping the cause list or manipulating them for deliberately placing heavier matters at the fag-end with a view to delaying disposal; adjournments for no valid reason; some judges even manipulate allotment of cases; seek cheap popularity or media attention; mix with politicians, thus compromising the "image of neutrality" expected of a judge. The commission has proposed that the statutory committee appointed for the specific purpose of determining grounds for impeachment should be made a permanent statutory body to deal with cases of deviant behaviour by the judges. This permanent statutory committee will be called upon to hear and entertain complaints of "deviant behaviour" on the part of judges.
But one question still remains and that is an important question: who shall determine the integrity of the judges? Their brother judges, that is, sitting members of the Bench or should the judges' cases be handled by a body separately constituted for the purpose. The Constitution Review Commission appears to favour assigning of this task to the Supreme Court. In cases of "misbehaviour" full court at the apex level may take up the task of pronouncing or determining the guilt of a fellow-judge, which would also recommend removal of the guilty judge to the President. For deviant behaviour full court may administer "warning" or inflict minor punishment. These are preliminary recommendations in a preliminary interim report released by the Constitution Review Commission. Whether they will ever see the light of the day is a moot question.
JITENDRA KUMAR SHARMA
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