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Removal of judges
REMOVAL OF a Supreme Court or High Court judge is governed by Articles 124 (4) and (5) and 217 (1) (b) and 218 of the Constitution on the ground of proven misbehaviour or incapacity. The words "misbehaviour" or "incapacity" have neither been defined nor clarified in the Constitution. The complaint about misbehaviour or incapacity against a judge has to be probed under the Judges (Inquiry) Act, 1968.
Till this day there has been a solitary case of a judge being forced to resign because of sharp public opinion with even a threat of removal if he did not resign — that of Justice Imam of the Supreme Court who had, while on the Bench, suffered from physical disability.
In regard to investigation and proof of misbehaviour alleged against Justice V. Ramaswami of the Supreme Court, a three-member committee was appointed under the Judges (Inquiry) Act. It comprised Justice P. B. Sawant of the Supreme Court as presiding officer, P. D. Desai, Chief Justice, Bombay High Court and Justice O. Chinnappa Reddy, former judge of the Supreme Court, as members. This committee unanimously found the charges levelled against Justice V. Ramaswami proved but the motion for his removal in the Lok Sabha failed because of political considerations. The enquiry committee indicted the sitting Supreme Court judge but Parliament absolved him. Thus the removal of a Supreme Court judge by parliamentary process was unsuccessful in the only case brought before Parliament so far.
Currently a debate is going on in the country for devising a mechanism to bring errant judges of the superior judiciary to book in order to remove them.
Justice J. S. Verma, the 27th Chief Justice of India, favoured a model code of conduct for judges and once said, "If we do not question ourselves the people may enact a law empowering somebody else to question us." Within a few days of his retirement Justice Verma spoke about corruption in the judiciary and the failure of existing mechanisms to establish norms of conduct to bring errant judges to book.
Consultation paper
Former Chief Justice of the Supreme Court, E. S. Venkataramaiah, bemoaned "Judiciary in India has deteriorated in standards because some of the judges are willing to be influenced by lavish parties and whisky bottles." Thus he condemned the habitual "dine and wine judges."
The consultation paper on superior judiciary prepared by the National Commission To Review the Working of the Constitution headed by Chief Justice (Retired) M. N. Venkatachaliah states: "It has produced some very brilliant and extraordinary judges known for their learning, integrity and devotion to law. There have been some exceptions too and in the recent years more such exceptions are coming to light. There has been, of late, public concern over judges not observing working hours, being away from court work even without seeking leave, unduly delaying judgments and otherwise conducting themselves in an unjudge like manner. It is these few persons whose conduct calls for disciplinary system so as to preserve the fair name of the judiciary. Such a system will protect those unjustly accused. That apart, the very existence of the system will be a deterrent and will obviate the need to use it."
The consultation paper also observes that "There are some complaints that some judges, even Chief Justice, are not seen to keep a distance from centres of political power which would be conducive to the image of the neutrality. It is well to remember that judiciary ceases to be an effective instrument if its image and reputation for integrity and independence suffers."
The present procedure laid down in the Constitution for the removal of a Supreme Court or High Court judge on the ground of proven misbehaviour or incapacity is cumbersome, unworkable, unrealistic and therefore impossible. The consultation paper also says that, "It has become imperative to check undesirable and unhealthy tendencies in the judiciary. The present procedure of removal is totally inadequate and for various reasons is impractical."
Punitive correctives
The Commission to Review the Working of the Constitution, the Dinesh Goswami Committee on judicial reforms and other bodies have stressed the need for effective measures to deal with misbehaviour of judges and have also suggested various ways to check the growing evil. There is an urgent need for punitive correctives in the superior judiciary.
Let us hope and I believe it will not be a pious hope that the day is not far off when High Court or Supreme Court judges will not escape punishment for misbehaviour, corruption or misusing their office. They should be exposed to deterrent legal punishment. I suggest the formation of a permanent statutory body with representatives of the three wings — Parliament, Judiciary and Executive — to deal effectively with the errant judges.
SATYA PRAKASH MALAVIYA
Former Union Minister
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