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Judging the judges


Wednesday 20 August 2003, by VENKATESAN*V.

Article paru dans Frontline, Vol. 14, N?20, Oct. 4 - 17, 1997.

Serious allegations against a senior Supreme Court judge have been presented to the President by a group of eminent lawyers. What next?

SINCE the failure of the Lok Sabha motion to impeach Justice V. Ramaswami, former Judge of the Supreme Court, in 1993 (Frontline, June 4, 1993), the judiciary has been grappling with the issue of making itself accountable for its omissions and commissions. The Constitution envisages an elaborate impeachment process in Parliament to remove a judge from office, in order to make it difficult for the executive to interfere with the judiciary. However, doubts have been expressed about the effectiveness of the process. As the process is time-consuming and vulnerable to political pressures, the Supreme Court has explored the possibility of building in-house corrective mechanisms.

In the C. Ravichandran Iyer versus Justice A.M. Bhattacharjee and Others case (1995), the Supreme Court drew attention to the issue of "the hiatus between bad behaviour and impeachable behaviour." The case had to do with the allegation of unjustifiably high payments from a publisher to Chief Justice A.M. Bhattacharjee of the Bombay High Court (Frontline, March 24, 1995). While Bhattacharjee resigned following an uproar, the Supreme Court emphasised the need to evolve a method of self-regulation by the judiciary in such cases of alleged misconduct. After Justice J.S. Verma took over as the Chief Justice of India in March this year, a Full Court meeting of the Supreme Court on May 7 resolved that the Chief Justice should devise an in-house procedure to take action against judges who by acts of omission or commission did not follow universally accepted values of judicial life, including the values mentioned in the "Restatement of Values of Judicial Life", a document circulated by the Chief Justice. These values, enunciated by the Court itself, are intended to serve as a guide for judges and are considered essential for an independent, strong and respected judiciary. This Restatement, however, does not have statutory backing.

According to the list of values articulated by the Court, judges are expected not to contest elections to any office of a club, society or other association; to eschew close association with individual members of the Bar, particularly those who practise in the same court; not to permit any member of their immediate family, if he or she is a member of the Bar, to appear before them or even be associated in any manner with a case to be dealt with by them. Judges are also expected to prohibit the use of their official residences or other facilities by members of their families who are members of the Bar, and to avoid hearing and deciding matters that involve members of their families or their friends. Judges should practise a degree of aloofness consistent with the dignity of their office and avoid giving interviews to the media. Also, judges are required to avoid speculating in shares or stocks or receiving gifts from persons other than their relatives and friends.

The Court also resolved that judges should make declarations in confidence to the CJI (in the case of the CJI, for the record) of all their assets in the form of real estate or investments (held by them in their own names or in the names of their spouses or persons dependent on them) within a reasonable time of assuming office. In the case of sitting judges, the declaration was to be made within a reasonable time of adoption of the resolution. If any acquisition of a substantial nature was made thereafter, it was to be disclosed within a reasonable time.

The Supreme Court’s experiment with its internal corrective mechanism began in May, when it set up a seven-member in-house disciplinary committee (whose composition is a secret). It was not clear how it would deal with complaints of a serious nature against judges. If it found any allegation valid, then an option before the committee was to request the judge concerned to quit office. In the event of his or her refusal, the Court would refuse to assign work to him or her, as it did in the Ramaswami case. Only Parliament has the power to remove the judge, by means of an impeachment motion.

IN June, the Committee on Judicial Accountability, a voluntary body of senior advocates of the Supreme Court that came into existence during the Ramaswami affair, submitted a memorandum to President Shankar Dayal Sharma. It contained serious allegations of misconduct against a senior judge of the Supreme Court. The memorandum accused the judge - who in normal circumstances is expected to succeed the present CJI in January next year on the basis of seniority - of lacking integrity and of "displaying propensities of behaviour which amount to nothing less than dishonesty." The memorandum, with annexures running to 320 pages, has alleged and listed seven instances of serious misconduct or dishonesty on his part. Frontline is fully aware that what the judge faces is a set of allegations which need to be investigated. Quite obviously, his right to reply to the allegations and to defend himself in print needs to be honoured. However, since what the Committee on Judicial Accountability has presented to the President and the Prime Minister is of undeniable public interest, this report is being published with the name of the judge withheld for now.

The first allegation relates to the acquittal of a person sentenced by a High Court to rigorous imprisonment (R.I.) for two years and fined Rs.70 lakhs (in default, to undergo R.I. for six more months) on the charge of criminal breach of trust. The acquittal was made on the basis of a purported compromise. The memorandum alleged that the judge (sitting with another judge) allowed the compromise, despite the fact that the amount involved in the criminal breach of trust was Rs.7 lakhs. The offence of criminal breach of trust, according to the memorandum, cannot be compounded for an amount above Rs.250. The committee demanded an investigation into an allegation that Rs.35 lakhs were paid to the judge by the father-in-law of the person convicted by the High Court.

The second charge relates to the alleged allotment of two plots of residential land in a State for the judge’s daughters from the discretionary quota of the State’s Chief Minister. According to the committee, on the day of the allotment of these plots, the judge, who was then serving in the High Court, had dismissed the writ petition filed by a former Vice-Chancellor of a university against his suspension by the State Government.

The third charge is about the adverse inspection remarks recorded by the judge against a former sub-judge in the State. The committee has alleged that the remarks were made not on merits, but on extraneous considerations. The committee also said that in a case involving a relative of the judge, the sub-judge had decided against the relative.

The fourth allegation is that the judge had abused his powers as a Judge of the Supreme Court to hear and attempt to decide a case in which he was personally and directly interested.

The fifth allegation relates to the judge’s role in the Justice V. Ramaswami case. The committee accused him of telling the registry officials of the High Court to add the words "items found in order" on the inventory of items prepared for Justice Ramaswami’s official residence. According to the committee, these words were cited by Justice Ramaswami to suggest that no item was missing from his residence and that everything was intact. The committee also accused the judge of lacking judicial rectitude for his request to be placed on the Constitution Bench hearing the matter relating to the validity of Justice Ramaswami’s impeachment. The judge later withdrew from the Bench that heard and decided the case.

The sixth charge against the judge is that he had shown an unusual interest in retaining a matrimonial case with him. According to the committee, he allowed a divorce "in the teeth of the statute, against the law declared by the Supreme Court" in an earlier case; he even quashed the pending criminal proceedings initiated by the wife against the husband for bigamy, although the matter was before the Court. The Court had directed the husband to pay his wife a sum of only Rs.10 lakhs as alimony as against the claim of about Rs.62 lakhs as payments made by the wife on behalf of the husband’s income tax arrears and Rs.40 lakhs as amount towards maintenance and residence.

Another charge against the judge was that while serving in a High Court he had become a member of the Supreme Court Cooperative Society and had himself allotted a flat in Delhi. The committee said that the judge was not eligible for membership of the society as he was not a resident of Delhi. The judge disposed of the flat after joining the Supreme Court.

The committee requested the President to take serious note of the facts given in the memorandum, have such further investigations conducted as he deemed necessary through an agency that he considered appropriate and pursue the matter to its logical conclusion. The committee felt that the CJI, apart from setting the tone for the administration of justice, has the most vital say in the appointments of all the judges of the Supreme Court and the appointments and transfers of judges of High Courts of the country. The administrative power of the CJI in constituting benches and fixing the dates of hearing of cases makes him more than a first among equals in the Supreme Court. It is thus of the utmost importance, the committee suggests, to have as CJI a person who can be trusted to lead and guide the judicial administration of the country.

The memorandum was signed by 12 senior advocates of the Supreme Court, including V.M. Tarkunde, Justice D.S. Tewatia, Ram Jethmalani, Shanti Bhushan, Hardev Singh, A.D. Giri, Indira Jaisingh, Kamini Jaiswal, Prashant Bhushan and Arvind K.Nigam. It created an uproar in the Supreme Court Bar Association, with 480 members requesting a meeting on September 29 to discuss the issue. The committee members, however, boycotted the meeting on the grounds that the Bar is not competent to discuss the issue after the Supreme Court judgment in the Bhattacharjee case. The judgment said that the Bar should suspend its actions in a matter if the CJI is seized of it.

HOWEVER, opinion seems to be divided in the Bar Association, with many members insisting that the senior-most judge in the Supreme Court after Justice Verma should not be superseded while appointing the next CJI because of the allegations levelled by the committee. The committee has sent copies of its memorandum to the CJI and the Prime Minister. President K.R.Narayanan has reportedly referred the matter to the Union Law Ministry, which, in turn, has requested the CJI for his comments.

The Bar Association is aggrieved because the committee did not take it into confidence when it submitted the memorandum to the President. The committee’s stand is that the Supreme Court judgment in the Bhattacharjee case envisages the in-house settlement of complaints only if the allegations are not serious. The Court also barred the Bar from discussing the conduct of the judges and instead suggested that the Bar could take up specific complaints with the CJI and request in-house settlements.

A committee member justified the procedure adopted by the committee to deal with the present issue, saying that instances of grave misconduct by a sitting judge of the Supreme court can be brought to the notice of the President, the appointing authority, by anyone. "There is no impropriety in what we did," he said. According to him, the government can order an investigation into the complaints after receiving the concurrence of the CJI. Although impeachment through a resolution in Parliament is the only way the judge can be removed, the Bhattacharjee judgment has suggested that it should be the last resort.

A senior advocate of the Supreme Court, however, felt that the committee seemed to have resorted to a ’mid-way’ procedure to get the judge disqualified for the post of the CJI, since it was not confident of securing the necessary support among MPs to admit an impeachment resolution or seek his resignation through the Bar Association and the CJI. The advocate also said that the charges were so serious as to remove the judge. Therefore, according to him, the right procedure would have been to enlist MPs’ support for an impeachment motion in Parliament. He also wondered whether one could infer a lack of integrity, as the committee seems to have done, from a judgment that might have been outrageously wrong. "The committee seems to have arrogated to itself the power to sit in judgment over the conduct of the judge," he said.

WHATEVER be the validity of the allegations against the judge, the signatories to the memorandum are all senior legal figures. It is difficult to imagine them having embarked upon such a course of action without being aware of all the possible consequences or because of group loyalties in the Bar Association. It remains to be seen whether the Government considers their initiative with due seriousness, especially since it has a bearing on the largely unexplored domain of judicial accountability. The supercession of a judge on the basis of allegations yet to be proven is an odious recourse, replete with possibilities for the long-term weakening of the judiciary as an independent arm of governance. But there appear to be few options if judicial self-correction is found wanting.

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