Sacking govt easier than removing judges in India-By Sarita Yadav

Transparency International in its 2007 report said Judiciary in India was the third most corrupt institutions. Recent instances seem proving it.

The letter written by the Chief Justice of India (CJI) to the Prime Minister seeking his intervention in initiating impeachment proceedings against a sitting judge of Calcutta High Court, has triggered a debate again regarding corruption in higher judiciary and its impunity.

We have seen removal of governments and Prime Ministers so many times, but removal of High Court and Supreme Court judges has not been so far heard after the Constitution of India came into force in 1950.

Independent India has, however, witnessed one impeachment, when Justice Shiv Prasad Sinha of Allahabad High Court was removed by the then Governor General of India, C Rajagopalachari in 1949 on the recommendation of the Federal Court.

The Chief Justice has given detailed information about Justice Sen’s misconduct when he was appointed receiver by Justice AN Roy in Steel Authority of India versus Shipping Corporation of India case in 1993.

The three-Judge panel comprising Madras High Court Chief Justice AP Shah, MP High Court Chief Justice AK Patnaik and Rajasthan High Court Chief Justice RM Lodha inquired into the charges leveled against Justice Sen and found them true.

The panel submitted its report in February, 2008. On March 16, the Collegiums of the apex court comprising of Chief Justice BN Agarwal and Justice Asok Bhan asked Justice Sen either to resign or to opt for voluntary retirement.

However, with Justice Sen deciding not to comply with either of the two options, the Chief Justice was forced to resort to this unprecedented move.

The move is unprecedented, because neither there is any provision in the constitution about such recommendation nor before this, any Chief Justice has taken such ‘extreme step’.

In fact Article 124(4) of Indian Constitution provides for removal of High Court and Supreme Court Judges.

The Article says: “A judge of Supreme Court shall not be removed from his office except by an order of the President passed after an address by each House of Parliament supported by a majority of the total number of 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.”

There is no separate provision for removal of High Court judges and Article 217(1)(b) provides for this and says, “A judge may be removed from his office by the President in the manner provided in clause(4) of Article 124 for the removal of a judge of the Supreme Court.”

The processes of removal of High Court and Supreme Court judges are the same. The above Article of the Constitution provides for impeachment, whereas; Judges (Inquiry) Act, 1968 determines the process of impeachment.

According to this Act, the impeachment of a judge can be done only by Parliament and impeachment can be initiated after a motion addressed to the President of India is signed by at least 100 members of the Lok sabha or 50 members of Rajya Sabha.

Such is the process and such is the impunity. Such Judicial impunity has been conferred on Judiciary for the sake of its independence.

The above provision is similar to the rule prevailing in England, since the Act of Settlement, 1701, to the effect that though judges of the superior courts are appointed by the Crown, they do not hold office during his pleasure, but hold their office on good behaviour and the Crown may remove them based on a joint address from both the Houses of Parliament.

Any way the credit must be given to Chief Justice, who could take such extra-ordinary step, because after all, extra-ordinary situation demands extra-ordinary steps.

But unfortunately, the government was sitting over it as it was written two months ago and could only be known to public through media.

Before any debate on this issue, it should be clearly borne in mind that above cumbersome procedure of impeachment and other judicial impunities have been enshrined in the Constitution for making Judiciary independent.

Independence of Judiciary
The independence is guaranteed in our Constitution and the concept has been borrowed from the US Constitution. Article III of US Constitution guarantees Independence and Supremacy of Judiciary in the US.

Independence of Judiciary is the tenet of democracy and therefore, even Russian Constitution of 1993 (Chapter-7 Section 120-122) also guarantees independence of Judiciary in the country.

In fact section 124 of the Russian Constitution says, “Judges shall posses immunity and criminal proceedings may not be brought against a Judge except as provided for by federal law.”

In India, this independence and limited Judicial Supremacy are enshrined in the Constitution and are expressed in the methods of appointment of judges; the process of impeachment; and the power of judicial review.

Now, if all these provisions of the Constitution are analysed, inference can easily be drawn that the problems lay here themselves and so do solutions.

The Appointment Rules
Articles 124 and 217 provide for appointment of Judges of Supreme Court and High Court respectively. They clearly stipulate that the appointments have to be made by the President in consultation with the Chief Justice.

The word ‘consultation’ has been always a matter of dissent and controversy. In fact, when AN Ray was appointed as Chief Justice after superseding three senior Judges namely Hegde, Grover and Shelat, there was uproar in Judicial community including the Bar council of the apex court.

They argued that judges have been superseded owing to their judgement in Keshavanand case (AIR 1973 Supreme Court) which went against the government.

Gradually the direction of Executive in matters of appointment of judges started diminishing. In 1993, a land mark judgment came from Supreme Court in ‘Advocates on record versus Union of India’ case.

The apex court ruled that the recommendations for appointment of Judges in High Court and Supreme Court will be made by collegiums of three Judges and shall be in a way binding on the government.

After a ‘presidential reference’, the number in the collegiums was increased from three to five.

This judgment was a landmark because it took virtually all discretionary powers of the Executive in matters of appointment of judges in higher judiciary. Thus, the word ‘consultation’ became ‘concurrence’.

Some people in legal domain argue that it was a dangerous development and was against the principles of the Constitution itself. How can a person or a group of persons appoint themselves which goes against the ideas enshrined in Article 311?

They opine that there must be a transparent and justifiable procedure for such appointments. There are instances where persons from one family are becoming Judges for two to three generations.

The judicial community of higher Judiciary is becoming an elite club of few ‘privileged families’. Candidly, it is not what ‘independence’ meant for.

The Impeachment
The process of impeachment as discussed in the article above, clearly indicates that it is a cumbersome process. No wonder then, not a single judge could be removed in India since 1949.

It may be recalled that in 1991, the impeachment proceedings for removal of Justice V Ramaswami fell flat on its face after members of the Congress party decided to abstain from voting.

The process of impeachment is laid down in Judges (Inquiry) Act, 1968 which says that even if the motion is accepted, the presiding officer of the House has to constitute a three judge committee to further inquire into the matter.

The process suggests that the motion will be put to voting once again after the submission of the report by the Judges’ Committee. However, unlike in the case of a no confidence motion against a government, which requires a simple majority to survive, the impeachment motion against a judge requires a two-third majority.

That is why, it is truly said that it is easier to decide the fate of 100 billion people by way of forming and toppling Governments in India than removing a Judge in the country.

It is also but strange that the country which has seen many a ministers and bureaucrats being convicted on charges of corruption does not have a single incidence of a judge being impeached.

The ‘Transparency International’ in its report of 2007 has counted judiciary as the third most corrupt institutions in India, an inference totally in contrary to the common perception that instances of corruption in higher judiciary are not unheard of.

The former CJI Y K Sabarwal himself is in the eyes of storm for his judgement pronounced in the ‘Delhi Sealing Case’, which allegedly benefited his son. When a report in this regard appeared in one Newspaper, a suo motto contempt proceeding was initiated and the concerned reporter was sought to be punished.

The Contempt of Court Act, 1971, which itself is not yet codified, is another tool which sometimes is used to gauge the voice of dissent.

In another infamous case, the vigilance department of UP Police exposed misappropriation of funds worth Rs 23 crore from the GPF account of Class III and IV employees of Ghaziabad Civil Court.

One of the accused arrested in this connection, made startling revelation that he has parted the money both in cash and kind, with one sitting Judge of SC, ten Judges of HC and 23 Judges of lower courts.

The investigation is not proceeding as Police cannot interrogate judges without the consent of SC, though such protections are not given in Judges (Inquiry) Act. The matter is still pending with the apex court and the CJI has to convince the nation, whether there is equality before the law or not.

Not to forget the matter of the two Haryana High Court Judges whose names have figured in a case in which a law officer from Haryana has alleged to have sent Rs 15 lakh to them.  The Matter has been referred to CBI by the apex court.

The list is long and result is dismally naught. And while one may agree that it is easy preaching than done, the question being asked by common citizen is that who will judge the judges?

The Remedies
•    The provisions of RTI should be made applicable to all components of functioning of Judiciary. Accordingly, suitable amendments in RTI Act, 2005 can be made.

•    The procedure of selection of Judges should be made more transparent and justifiable. Panel of judges can be made well in advance before recommendation and be known to public by way of websites or media.

•    Idea of setting up of a National Judicial Commission can also be made into reality, after all if you are required to go for a test for becoming a clerk, why does selection of judges not require any test. An all India test might also be conducted to select judges of higher judiciary.

•    The Government is sitting over the Judges (inquiry) bill, 2006 for more than two years, therefore it should be passed, but before that necessary amendments are required, because the concept of ‘brother judges’ doing inquiry has proved ineffective if not futile.

•    The contempt of Court Act, 1971 should be suitably amended, because healthy criticism of any institution is generally beneficial for the system itself in the long run. The Judiciary should prepare itself for listening to its criticism and bring about change by itself, a change though painful but helpful.

—The opinion expressed in this article are of the writer and not those of iGovernment

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