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The judicial jigsaw
January 17, 2003
The other day a three-man judicial committee set up by the Chief Justice of India indicted a Rajasthan high court judge for his 'involvement' in a proposition to a woman doctor to have sex with him in exchange for a judicial favour (Manoj Mitta's report in The Indian Express, Mumbai, December 19, 2002).
However, the Chief Justice (now retired) did not take any action except order the same judicial committee to make further enquiries into the additional allegations of corruption mentioned in its earlier report against the same judge. The errant judge is thus the new CJI's baby.
One other judicial committee, reporting almost simultaneously, ended almost the same way.
The report of a three-member judicial committee -- constituted by the former chief justice of the Punjab and Haryana high court -- found two of that court's judges guilty of 'misconduct' in the Punjab Public Service Commission scam.
The CJI, to whom the report had gone for action, concluded that the 'misconduct' disclosed was not 'grave enough' to warrant impeachment; ergo, all that happened to the duo was a slap on the wrist! What's more, he wanted the judicial committee to delineate the difference between misconduct' and 'grave misconduct.' (ibid)
Trust legal eagles to debate words like 'misconduct.' In his book on the Constitution of India, P M Bakshi, the well-known authority on the subject, tells us it is the Punjab Police Manual which makes a distinction between 'misconduct' and 'gravest misconduct.'
Further, he cites a Supreme Court judgment to the effect that if the court objectively finds that the conduct in question is not of the gravest kind, then only minor punishment can be awarded. In such a case, the order of dismissal would be set aside [State of Punjab v Ram (1992) 4 SCC 54 (3 judges)]. So, what the retired CJI did in the case of the two judges in the PPSC was just to follow a judicial precedent -- as simple as that.
Even if 'gravest misconduct' warranted dismissal of the two judges, the CJI was powerless to do so on his own steam. It is the Constitution of India that has laid down how a judge of a high court or the Supreme Court can be removed. Its Article 124 (4) says: 'A judge of the 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 third of the members of the 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.'
For high court judges, Article 217 (b) says his/her removal from the office is to be done in the same manner provided in Article 124 (4) cited above.
In respect of the subordinate judiciary, Article 235 vests their control in the respective state high court. However, three Supreme Court judgments have held that 'the high court can suspend a judge with a view to hold disciplinary enquiry, can hold inquiries and impose punishment over judicial officers, short of 'dismissal or removal' or 'reduction in rank' which fall within the purview of the Governor under Article 311, but even such an action can be taken only on the recommendation of the High Court.' (Pg 226, Indian Constitutional Law by M P Jain, Wadhwa & Company, Nagpur, 4th edition reprint, 2002).
While a legal historian alone can tell us whether a subordinate judge has at all been removed from office in free India, one can't quite recall whether that fate has ever befallen a high court judge. And a Supreme Court judge certainly hasn't been axed in the 52-year-old constitutional history of our country.
The nearest to that was during the Narasimha Rao's Congress regime when a motion for the impeachment of Justice V Ramaswami was brought in Parliament but could not be carried because the Congress abstained from voting. (Article by Soli Sorabjee, Attorney General of India, in The Times of India, December 8, 2002).
The fallout of the two judicial committee reports on the Punjab Public Services Commission scam and on the Rajasthan judge is loud enough signal that the time has come to make our judiciary accountable to the nation like any other civil servant. Immunising judges from the law of the land is simply doing us no good; indeed, it may be doing us a lot of harm.
Fali Nariman, a Rajya Sabha member and a towering legal name, has advocated (in an article The Hindu, December 10, 2002) that India should enact a law on the lines of the one made by the USA in 1980 whereby a judicial body is empowered to take such action against a federal judge 'as is appropriate, short of removal.' Such a law, Nariman believes, 'would be appropriate to ride ourselves of the few 'black sheep,' and yet maintain and preserve the judicial independence of the higher judiciary guaranteed by our Constitution.'
This suggested remedy is totally, totally inadequate because it still doesn't deliver the punishment of loss of a job. And what, pray, has the fear of loss of one's job due to misconduct got to do with preserving one's independence? On the other hand, immunity against misdemeanours spurns misdemeanours -- in a janitor as well as a judge.
One simply can't understand, therefore, why judges should not be subjected to civil service rules and to the relevant law that is violated by him.
Take that Rajasthan judge who offered judicial favour in exchange for sex with the litigant concerned. Under Section 7 of the Prevention of Corruption Act, 1988, even the attempt to obtain any gratification (not restricted to pecuniary) from any person as a reward for doing any official act is an offence punishable by imprisonment of not less than six months. Then, with a judicial committee itself indicting the Rajasthan judge for seeking sexual favours, why can't he be prosecuted under this Section 7?
Interestingly, like a Supreme Court judge as well as a high court judge, the President of India too can be removed from office only by impeachment (Article 56) through a Parliamentary procedure laid down in Article 61. Article 56 warrants the President's impeachment for 'violation of the Constitution' which implies not only violation of a formal constitutional provision but also the conventions operating thereunder.
This violation, it is conspicuous, is not ground for impeachment of the highest judiciary even though it has increasingly tended to issue diktats on issues where only Parliament reigns supreme as in, for instance, the precise nature of electoral reforms which raised a controversy only recently. M P Jain also sees the possibility of Presidential impeachment for 'treason, bribery or other high crimes or misdemeanours' as felt by B C Das in Impeachment of India's President: A Study of the Procedure (ibid, Page 84). And to think that the President of India acts, in almost all cases, on the advice of the council of ministers.
We thus have the situation that in respect of removal from office through impeachment, the Supreme Court judge is not only at par with the President of India but even higher when it is considered that the judge is protected even from violation of a constitutional provision or of constitutional convention.
Do we wish to retain this perverse situation? That is the question which must be most seriously confronted by our people and our Parliament