As SC battles fallout of allegations against CJI, understanding the key questions around ‘misbehaviour’ by judges, the protection they need against accusers, and judicial independence and accountability

 

Faizan Mustafa | The Indian Express | April 25, 2019

 

A committee comprising Justices S A Bobde, N V Ramana and Indira Banerjee will begin an unprecedented inquiry Friday into allegations of sexual harassment made by a former employee of the Supreme Court against the Chief Justice of India. On Wednesday, a lawyer who claims he was offered Rs 1.5 crore to “frame” the CJI submitted an affidavit on the alleged conspiracy to a three-judge Bench of the court, after which the court summoned the chiefs of Delhi Police, CBI and IB for a meeting. In the meanwhile, the complianant has sought safeguards like video recording, and an inquiry by six retired judges of the Supreme Court.

 

While judges indeed require powerful protection against motivated accusations, due process demands that an expeditious, thorough, fair and impartial probe is carried out in the matter. The extraordinary developments at the country’s highest seat of justice offer an opportunity to revisit some larger questions around judicial accountability.

 

The question of ‘good behaviour’

 

India’s Constitution protects judges against the will of the masses, of Parliament, and of the all-powerful executive. A judge of the Supreme Court cannot be removed “except by an order of the President passed after an address by each House of Parliament supported by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present and voting has been presented to the President in the same session for such removal on the ground of proved misbehaviour or incapacity”.

 

Impeachment is a political process, in which MPs vote along party lines. The impeachment proceedings against Justice V Ramaswami in 1993 failed after the Congress voted against it. Last year, the Rajya Sabha Chairman rejected an Opposition move to impeach then CJI Dipak Misra at the stage of introduction itself, citing the minority opinion in M Krishna Swami vs Union Of India & Ors (1992).

 

The Constitution does not define ‘misbehaviour’ and ‘incapacity’. The Judges (Inquiry) Bill, 2006, which sought to establish a National Judicial Council to inquire into allegations of incapacity or misbehaviour of judges of the High Courts and Supreme Court, defined ‘misbehaviour’ as “wilful or persistent conduct which brings dishonour or disrepute to the judiciary; or wilful or persistent failure to perform the duties of a judge; or wilful abuse of judicial office, corruption, lack of integrity; or committing an offence involving moral turpitude…”

 

Judicial Standards and Accountability Bill, 2010, which tried to lay down enforceable standards of conduct for judges, proposed to widen the definition of ‘misbehaviour’ by adding “corruption or lack of integrity which includes delivering judgments for collateral or extraneous reasons, making demands for consideration in cash or kind”, or “any other action… which has the effect of subverting the administration of justice”. Failure to declare assets and liabilities, or wilfully giving false information was also included within the definition of ‘misbehaviour’.

 

In C Ravichandran Iyer vs Justice A M Bhattacharjee & Ors (1995), the Supreme Court said ‘misbehaviour’ could not have a straitjacketed definition. But if the conduct of a judge leads to the credibility of the judiciary being called into question, it should be considered misbehaviour. Misconduct prior to assuming office is not exempt — in 2009, Rajya Sabha passed an impeachment motion against Justice Soumitra Sen of Calcutta High Court for allegedly misappropriating funds several years before he became a judge.

 

What should be the standard of proof for ‘misbehaviour’?

 

While rejecting the Opposition’s notice for impeachment of CJI Misra, Vice-President M Venkaiah Naidu cited the “lack of substantial merit”, and said the charges had not been proved beyond reasonable doubt. But impeachment is not a criminal trial. In all civil matters, the standard of proof is the “preponderance of probabilities”. In Australia and South Africa, this is the standard of proof in the impeachment process of judges.

 

India does not currently have a statutory mechanism to examine the misconduct of judges, and short of the complex process of impeachment, there is no mechanism available to make judges accountable.

 

Allegations against judges

 

While no judge has so far been removed by impeachment, several have faced allegations of corruption, and a couple of them of sexual harassment as well. An allegation of corruption or sexual harassment, if proved, ought to count as misbehaviour or misconduct.

 

Sexual harassment

 

In 1997, the Supreme Court noted that “the present civil and penal laws in India do not adequately provide for specific protection of women from sexual harassment in work places”, and laid down the ‘Vishakha Guidelines’ (Vishakha & Ors vs State Of Rajasthan & Ors). Sixteen years later, Parliament enacted The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.

 

Under the so-called POSH Act, sexual harassment includes sexually determined behaviour, whether directly or by implication, such as physical contact and advances, demand or request for sexual favours, sexually coloured remarks, showing pornography, or any other unwelcome physical, verbal, or non-verbal conduct of a sexual nature. Every institution that has more than 10 employees must have an Internal Complaints Committee (ICC).

 

The Supreme Court has a Gender Sensitisation and Internal Complaints Committee headed by a woman judge, with a majority of woman members. The committee has a laid-down procedure for dealing with complaints of sexual harassment on the premises of the court. But it has no power to deal with complaints against the CJI or judges. In respect of misconduct by judges, the in-house process can be initiated only by the CJI. The Regulations are silent on a situation where the allegation is against the CJI himself.

 

In 2014, a law intern had made an allegation of sexual harassment during an arbitration proceeding against Justice A K Ganguly who had by then retired as a judge of the Supreme Court. Justice Ganguly resigned as chairman of the West Bengal Human Rights Commission in January 2014 after the Union Cabinet decided to make a Presidential Reference to the Supreme Court under Article 143 for his removal. Justice Ganguly, who denied the allegations, subsequently revealed the name of the complainant in his book.

 

Judicial corruption

 

In K Veeraswami vs Union Of India And Others (1991), a five-judge Bench of the Supreme Court ruled that in case of an allegation of corruption against a judge of the Supreme Court, the President 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 to public servants. Justice K Jagannatha Shetty wrote: “The judiciary has no power of the purse or the sword. It survives only by public confidence… The judge whose character is clouded and whose standards of morality and rectitude are in doubt may not have judicial independence and may not command the confidence of the public. He must voluntarily withdraw from the judicial work and administration.”

 

Veeraswami was only about allegations of corruption, but it is being followed for all allegations, including the commission of crimes against judges of constitutional courts.

 

In 2016, the former Arunachal Pradesh Chief Minister Kalikho Pul committed suicide, leaving behind a 60-page note in which he made allegations of bribery and corruption against the then CJI J S Khehar, his successor Justice Misra, and the then President Pranab Mukherjee. In February 2017, Mrs Pul wrote to CJI Khehar asking him to “place the matter before the appropriate judge”. Justice Khehar treated her letter as a petition, and the matter was referred to an appropriate Bench.

 

Judicial accountability and the rule of law

 

To place judicial performance beyond scrutiny would be myopic, as liberty without accountability is freedom of the fool. Power without responsibility is the anti-thesis of constitutionalism. 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. Both judicial independence and judicial accountability are purposive devices designed to serve greater constitutional objectives. Though the independence of the judiciary is a part of the basic structure of the Constitution, it is not an end in itself. In fact, it is an instrumental value defined by the purposes it serves.

 

The rule of law demands judicial accountability. Accountability makes the exercise of power more efficient and effective. The British constitutional theorist A V Dicey wrote that “no man is above the law [and] every man, whatever be his rank or condition, is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals”. Legal equality is the cardinal principle of the rule of law, and everyone including judges, must respect it.

 

The article was published in The Indian Express. The article can be read here.