Two events in the recent past have once again thrown the judiciary virtually into the eye of a storm. The first one occurred a few weeks ago when a judge of the Allahabad High Court gave a speech which many felt was inappropriate because of the communal nature of its contents. The second incident happened a week ago when a large amount of cash was found in the outhouse of the residence of a judge of the Delhi High Court. The incidents have left many shaken and wondering whether we have a credible and independent judiciary.
What is it that the judiciary can do to ensure that similar incidents do not recur and, if they do, can any steps be taken to discipline an errant judge?
There is already a mechanism to discipline a judge through the impeachment process. This provides adequate opportunity to a judge to explain his or her point of view and demonstrate that the allegations made are incorrect, if not false. The first step in this regard is taken by the chief justice of the concerned high court, who informs the judge about the complaint and requests an explanation, usually oral. If the explanation is not satisfactory, the complaint is escalated to the level of the chief justice of India, who may then direct an in-house enquiry to be conducted by two chief justices of different high courts and a judge of a third high court. Subsequent steps are taken depending upon the report of the in-house enquiry.
In a departure from the established procedure, in the Allahabad incident, the CJI and four senior judges of the Supreme Court invited the judge to explain his point of view. It is not known what transpired in that meeting, but no further steps seem to have been taken against the judge. Either the CJI and the judges were satisfied with the explanation given, or they decided, for whatever reason, not to proceed any further.
In the Delhi incident, the explanation given by the judge from the Delhi High Court did not find favour with the CJI and the chief justice of the high court. The result is that an in-house enquiry was directed by the CJI, which is in progress. It is premature to conclude whether the judge is guilty of the allegations against him or not. However, in an unprecedented step towards transparency, the entire record of the case, that is, the report of the chief justice of the Delhi High Court and the explanation given by the judge, has been placed on the website of the Supreme Court.
These incidents beg the question whether the procedure to discipline an errant judge is adequate or not―in the Allahabad case, nothing seems to have happened, but in the Delhi case, an in-house enquiry has been directed.
I would think that judges are extremely vulnerable in the sense that they decide dozens of cases every day in favour of one party or the other. The litigant losing a case can always make a frivolous complaint against the judge, and this is not uncommon. A CJI had once indicated that a large number of complaints are received by him against one judge or another, virtually on a daily basis. Most of them are frivolous and by disgruntled litigants. If an explanation is called for from each judge in respect of each complaint, the justice system will collapse. Only serious complaints supported by cogent material deserve to be considered by the CJI, and these are very, very few.
It is true that it is difficult to find evidence of misconduct by a judge, particularly in respect of an allegation of corruption, but that is how it is for everybody, including bureaucrats and legislators. Judges, therefore, cannot be made an exception to the rule, although a greater degree of probity is expected of them because of the nature of their duties.
However, I do believe that whatever procedure is followed, it should not only be definite, but should be expeditious and transparent. It does not serve the public interest if an in-house enquiry or the impeachment process drags on for several months. The process must conclude quickly, one way or the other.
With regard to the allegations against the judge from the Allahabad High Court, a notice requesting the commencement of impeachment proceedings has been signed by several legislators of the Rajya Sabha, but apparently no substantive action has been taken on it for about three months. What purpose does this serve? If it is believed that the notice is without substance, keeping it pending sends the wrong signal while the judge continues to perform his judicial duties with the cloud of impeachment hovering above him.
A solution: let us debate and discuss steps to strengthen the process of disciplining judges, keeping in mind the principles of natural justice which require a fair and impartial hearing to the judge and which also postulate a quick disposal of the complaint. The initiative must be taken by the judiciary, urgently. This would not only be appropriate as far as the judge is concerned, but also as far as public interest is concerned, and it would certainly renew faith in our justice system, which is the last bastion for the aggrieved.
―The author is former justice of the Supreme Court.