By Manjunatha N G
The Constitution of India accords the Judiciary a very dignified and crucial position. The Indian Judicial machinery consists of the Supreme Court as the apex court, the High Courts and the lower courts together constituting a single, unified judiciary and not a dual system of courts as in the U.S.A., thus having an advantage of simplicity over its American counterpart.
The Judiciary plays a significant role of interpreting and applying the law and dispenses justice to its people and also those issues between the citizens and the state. It ensures the maintenance of rule of law in the country and the running of the government in accordance to law. It safeguards the supremacy of the Constitution by adhering to it and keeping all authorities within the Constitutional framework. It also protects the Fundamental Rights of the people guaranteed under the Constitution of India. It is therefore necessary for the courts to discharge their functions without fear or favor for which the judicial independence is a basic tenet and creed of dispensing justice in a democratic society.
What is expected of a Judge in the higher judiciary
Vested with such commanding heights, immense constitutional power and responsibility, the Judiciary is reposed with the trust, faith, confidence apart from a high regard and expectation from the populace. In furtherance to this, it is also true that the society expects to be accorded and administered with the highest and most exacting standards of propriety in judicial conduct.
Social and cultural molding of public perception and expectations is an area which is shaped by various factors. Conduct and integrity issues of politicians, bureaucrats, judges in a democratic set up is a highly sensitive and subjective issue with various perceptual overtones. To be specific, on judges a high moral ground has been culturally and morally already set up in the public expectations. The altar of the judge is looked as an elevated platform to be exemplary in nature for emulation.
On the nature of the prescribed conduct of a judge: A Judge’s official conduct should be free from impropriety and the appearance of impropriety and generally, he should refrain from participating in activities which may tend to lessen public respect for his judicial office. Both his official and personal behavior should be in accordance with the highest standards the society can expect of him.
The ultimate standard must be conduct which constantly reaffirms fitness for the high responsibilities of judicial office and judges must so conduct themselves as to dignify the administration of justice and deserve the confidence and respect of the public. In fact even in his private life a judge must adhere to standards of probity and propriety higher than those deemed acceptable for others. While a judge does have the right to entertain his personal views on controversial issues and is not required to surrender his rights or opinions as a citizen, his right to free speech and free association are limited from time to time by his official duties and he must be most careful to avoid becoming involved in public controversies.
Law and procedure for the appointment and removal of a judge
The Constitution of India lays down the law and procedure according to which the appointment of judges and their removal is carried out. Appointment. According to Article 124(2), the judges of the Supreme Court are appointed by the President and while appointing the Chief Justice, the President has consultation with such of the judges of the Supreme Court and the High Courts as he may deem necessary. While according to Article 217(1), the High Court judges are appointed by the President after consulting the Chief Justice of India, the Governor of the State concerned and in case of appointment of a Judge other than the Chief Justice, the Chief Justice of the High Court to which the appointment is to be made.
Removal
Article 124(4) and (5) of the Constitution provides for the removal of a Supreme Court Judge while Article 217(1)(b) provides for the removal of a High Court Judge in the same manner as that of a Supreme Court judge as stipulated under Article 124(4) and (5).
Article 124(4): ‘A Judge of a 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 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 misbehavior or incapacity. (5) Parliament may by law regulate the procedure for the presentation of an address and for the investigation and proof of the misbehavior or incapacity of a Judge under clause (1).’
Acting under the provision of Article 124(5), Parliament enacted the Judges (Inquiry) Act 1968 which came into force on 1 January 1969. Section 3 of the Act provides for investigation into the misbehavior or incapacity of a Judge by a Committee. Put briefly, Section 3 provides for the notice for presenting an address to the President for the removal of a Judge, which must be signed by 100 members of the Lok Sabha. On receipt of such notice, the Speaker may either admit it or reject it. If admitted, as soon as possible, the Speaker must appoint a Committee of three persons specified in Section 3(2) of the Inquiry Act.
Reading Article 124(4) and (5) with the Inquiry Act, the position which emerges is briefly this: The procedure for removing a judge falls into three stages. The first stage begins with the presentation of a notice to the Speaker for the removal of a Supreme Court Judge. If the Speaker rejects the notice, the matter comes to an end. If, however, the Speaker admits the motion, he must appoint a Committee of three members as provided for in Section 3(2) of the Inquiry Act. In the second stage, Parliament is not in the picture, because the Committee takes over the investigation into the charges of misbehavior against the Judge. Section 3(3) and 4 of the Inquiry Act provides how the Committee is to carry out the inquiry into the alleged misbehavior of the Judge.
On the conclusion of the investigation, the Committee shall submit its report to the Speaker stating its findings on each of the charges separately. If the Committee reports that the judge is not guilty of misbehavior, then, the motion pending in the House shall not be pursued. It is only if the Committee finds the Judge guilty of any of the charges of misbehavior that the third stage is reached and Article 124(4) comes into play. The third stage is important, because it brings both the Houses of Parliament into the process of removing the Supreme Court Judge. For it is only if the Report of the committee is adopted by each House of Parliament by an absolute majority of its members and by a majority of not less than two-thirds of the members present and voting, that the Judge can be removed by an order of the President.
The case of Justice Ramaswami
The procedure outlined above for the removal of a Judge was first put to motion in 1991. Steps were initiated to remove a Supreme Court Judge on charges of misconduct prior to his appointment when he was the Chief Justice of a High Court. 108 members of the Ninth Lok Sabha gave notice to the Speaker of a motion for presenting an address to the President for removal of Justice Ramaswami of the Supreme Court. He was charged for having committed financial irregularities while he was the Chief Justice of the Punjab and Haryana High Court. The then Speaker of the Lok Sabha admitted the motion and constituted an Enquiry Committee as required under Section 3(2) of the Judges Inquiry Act. Before the Committee could submit its report, Lok Sabha was dissolved.
In Sub-Committee of Judicial Accountability v. Union of India, the Supreme Court was called upon to decide whether dissolution of Lok Sabha put an end to the motion for removal of the concerned Supreme Court Judge. The Court held that the motion for removal of a Judge does not lapse on the dissolution of the House. Soon after the Inquiry Committee had started proceedings, a Congress M.P., Shri M. Krishnaswami, filed a petition in the Supreme Court challenging the Committee’s functioning. His complaint being that Justice Ramaswami was not given a fair hearing and that the Judge was entitled to a copy of the report. The Supreme Court dismissed the petition on the ground that the petitioner had no locus standi. If Justice Ramaswami wanted a copy of the report, he would have to appeal to the Court himself.
Later, a writ petition was filed in the Supreme Court on behalf of Justice Ramaswami by his wife claiming a copy of the report of the Inquiry Committee before its being submitted to the Speaker so that the judge may take recourse to judicial review in case he was found guilty by the Committee. In Sarojini Ramaswami v. Union of India, the Supreme Court considered several issues arising out of the writ petition.
One of which was: Whether the concerned Judge has a right of judicial review of the order of removal made by the President under Art.124(4)? The Court declared that the statutory part of the process, by which a finding of guilty is made by the Inquiry Committee, is subject to judicial review only in the event of an order of removal being made by the President and on the instance of the aggrieved judge alone. Before which it would be premature and unwarranted in the Constitutional scheme.
The other being: Does the concerned Judge have a right to get a copy of the report before its submission to the Speaker? It was held that the report of the Inquiry Committee containing the finding that the Judge is guilty of misbehavior is in the nature of recommendation for his removal which may or may not be acted upon by the Parliament while considering the motion for his removal. For this reason, no provision is made for a supply of a copy of the report by the Committee to the concerned Judge before submitting it to the Speaker as required by Section 4 of the Act in the manner prescribed in the Rules. The absence of such a provision in this law is a deliberate and not an inadvertent omission to emphasize the absence of that requirement. And therefore, the judge is not entitled to claim a copy of the report of the Inquiry Committee before its submission to the Speaker of the House.
In the long and arduous process of removal of the Supreme Court Judge, the third stage was reached when the Inquiry Committee held the Judge guilty of 11 out of 14 charges framed against him. The report was tabled in the Parliament and the motion was debated and put to vote in the House. However, when the impeachment proceedings continued, the then Prime Minister P.V. Narsimha Rao issued an ‘oral whip’ to all Congress party members present to abstain from voting on the impeachment motion.
Thus, the motion was lost as it could not receive the requisite votes in the House because of the absence of the Congress Party members from the House. Before the result of the impeachment proceedings was known, newspaper reports stated that there had been a deal between the Congress Party and Justice Ramaswami, that if the Congress Party secured the failure of the impeachment motion, he would resign. Later, it was again reported that after the announcement of his resignation he had second thoughts and was reconsidering his position. This probably was the first time that the reputation of the judges or the Courts was gravely injured and fell low on public esteem.
Intention and Implementation
The Procedure for the removal of the Judge [Supreme Court Judge or a High Court Judge according to the relevant constitutional provision, Article 124(4) and (5) or 217(1)(b)] in India, with respect to the constitutional scheme seeks to achieve a judicious blend of the political and judicial process, i.e., the first and third stages of removal proceedings being a political process while the intrinsic and crucial investigative second stage being judicial in its nature.
Since the motion for presenting an address to the President referred to in Article 124(4) has to be on the ground of ‘proved’ misbehavior or incapacity, no such motion can be made until the allegations relating to such misbehavior or incapacity have been found to be proved in a forum outside either House of the Parliament, which is the Inquiry Committee. The bar on Article 121 is removed and the third stage is presumed. This would ensure uniformity of procedure in both the Houses of the Parliament and serve to eliminate arbitrariness in the proceedings of the removal of the judge.
Conclusion
The entire procedure for the removal of the Judge was laid down to protect the interests of the Judge, the Judiciary and public interest in order to come to the right conclusion of ‘proved’ misbehavior. The intention behind such a legislation enabling the removal of a judge is significant in understanding that the independence of the Judiciary and the accountability for the proved misbehavior of the Judge are both well backed by the provisions of the Constitution and the Judges Inquiry Act read together. It provides at every interval an exercisable discretion to the Speaker with regard to the Judge. The Act also provides for the Judge a fair hearing and to provide his defense.
Even though the entire procedure for the removal of the Judge was laid down to protect the interests of the Judge, the Judiciary and public interest in order to come to the right conclusion of ‘proved’ misbehavior, it is common knowledge that there has never been a removal till date. This can be attributed to the long and arduous process and the initiation and culmination of such a motion for the removal requires the majority of the Houses of Parliament which has till now never been attained owing to the varying stands as witnessed in the case of Justice Ramaswami.
The Judges Inquiry Bill, 2006
A suitable legislative framework is the need of the hour for empowering a judicial forum to deal with complaints against judges of the High Court and the Supreme Court. On the basis of the recommendations made in the 195th Report of the Law Commission of India, the Judges Inquiry Bill, 2006 has been prepared. The Bill is based on the premise that judicial independence is one of the basic fundamentals of the Constitution. Judicial Independence and Judicial Accountability are inseparable.
Thus, the legislation seeks to amend the present procedure by the establishment of the National Judicial Council to look into the allegations of misbehavior or incapacity of a Judge of the Supreme Court or of a High Court, as the case may be, and to regulate the procedure for such investigation, inquiry and proof in a complaint procedure in addition to the earlier ‘reference procedure’ as contained in the Judges Inquiry Act 1968. The Bill, inter alia, seeks to empower the National Judicial Council for imposing minor measures also.
Conclusion
The Constitutional scheme aims at securing an Independent Judiciary which is the bulwark of Democracy. It is imperative to understand that there can be no Judicial Independence without Judicial Accountability and a distinction should be made between decisional and institutional Judicial Independence and decisional, institutional and behavioral Judicial Accountability. The image of the Judiciary should not be allowed to be tainted by a few unscrupulous and integrity-lacking officials in any capacity by their style of official functioning and public conduct. The impeachment process as existent is very cumbersome and the result uncertain. Judicial office is essentially public trust and the same should be secured to accord the judiciary its rightful place. An efficient and effective mechanism should be brought to enforce Judicial Accountability.