JUDGES AND JUDICIAL ACCOUNTABILITY IN INDIA WITH REFERENCE TO THE JUDGES

JUDGES AND JUDICIAL ACCOUNTABILITY IN

INDIA WITH REFERENCE TO THE JUDGES

(INQUIRY) BILL, 2005

Madhusudan Kesharwani

ªINTRODUCTION

‘Today it is the method of the appointment of the superior judiciary and the absence

of any disciplinary control including the removal of judge of a superior court which

raises problems of accountability….. there is also no method for disciplining a judge

of a superior court either for deviant behavior not amounting to misbehavior… the

conclusion is whilst the Indian higher judiciary is perhaps the most powerful

judiciary in the world today and societal perception for it is very, high accountability

mechanisms particularly in the disciplining of the judges of superior court and

representative character of the courts have not matched with its power and esteem’

Judiciary is one of the three important pillars of any democracy governed by

the rule of law. The legislature, executive and the judiciary are all creatures of our

Constitution. The view that the legislature is supreme is no longer recognised even in

England where the theory of parliamentary supremacy as propounded by Professor

Dicey, was in vogue for a long time. Recent judgments of courts in England have

declared that it is the Constitution that is supreme and that each of the three wings

has their respective jurisdictions and powers to the extent allocated to them in the

Constitution. Our Constitution contains checks and balances, which require all the

three wings to work harmoniously. It has created a separation of powers between all

1.ª

1 T.R. Andhyarujina, Former Solicitor General of India.

IV year, Hidayatullah National Law University, Raipur, Chhattisgarh.the three branches or wings though the separation, it is now well accepted, is not as

rigid as it is under the American Constitution.

No person, however high, is above the law. No institution is exempt from

accountability, including the judiciary. Accountability of the judiciary in respect of its

judicial functions and orders is vouchsafed by provisions for appeal, reversion and

review of orders. What is the mechanism for accountability for serious judicial

misconduct, for disciplining errant judges. Our Constitution provides for removal of

a judge of the Supreme Court or the high court for proved misbehavior or proved

incapacity, by what is popularly called the process of impeachment, where under two

thirds of the members of each House of Parliament may vote for the removal of the

judge. So far, only one impeachment proceeding has been initiated against a Supreme

Court judge. It failed because Congress abstained from voting and consequently twothirds

majority was not available. It is now generally accepted that the present

impeachment process is cumbersome, time consuming and tends to get politicised. It

needs to be reformed urgently.

The concept of judicial accountability in India is considered in two ways.

Firstly, accountability of higher judiciary in India for their judgments. Secondly, the

institutional methods of making judges accountable in India. The Indian judicial

experience is unique, the judicial accountability in the first sense was very much in

question in few decades of the Supreme Court from 1950 to 1973. There were

clashes between Supreme Courts decision on property and agrarian and economic

reform and the government’s view that the Supreme Court was unsympathetic and at

times hostile to its legislation on such matters. However from 1973 there have been

no such problems as the judiciary changes its direction. Its concerns now more for

human rights and civil rights of the citizens and community rights. No one speaks

about judges accountable for their judgment in economic and property matters

today. Today, it is the matter of appointments to the superior judiciary and the

absence of any disciplinary control including removal of a judge of superior court,

which raises problems of accountability.

The appointing authority of the judges of the superior courts with

acquiescence of the executive. At the same time, the only constitutional method of

disciplining a judge of a superior court viz by his removal for proved misbehavior by

an address given by both the houses of parliament to the president for his assent in

unwieldy and in one case, was shown to be politicised. There is also no method for

disciplining a amounting to misbehavior not amounting to misbehavior. Further, in

the absence of reformulation of the law of the contempt of the court by Supreme

Court, the existing law of the scandalising the court is perceived to operate as

deterrent to criticize a judge for his conduct.

As Justice Michael Kirby

‘In a pluralist society judges are the essential equalisers. They serve no

majority or any minority either. Their duty is to the law and to justice. They do not

bend the knee to the governments, to particular religions, to the military, to money,

to tabloid media or the screaming mob. In upholding law and justice, judges have a

vital function in a pluralist society to make sure that diversity is respected and the

rights of all protected’.

The Indian higher judiciary is perhaps the most powerful judiciary in the

world today and the societal perception of it is high, accountability mechanisms

particularly in the disciplining of the judges of superior court and the representative

character of the courts have not matched with its power and esteem.

2 says:2 Judge, High Court of Australia.

HISTORY OF JUDICIAL ACCOUNTABILITY IN INDIA AND ABROAD

A procedure for removal of judges of the high court and Supreme Court by way of

address of the Houses of Parliament to the President is contained in Constitution of

India, art. 124(4) read with proviso (b) to art. 124(2) and proviso (b) to art. 217(1),

for proved misbehavior or incapacity.

Earlier, the Judges (Inquiry) Bill, 1964 was formulated laying down the

procedure as contemplated by Art. 124(5) and the Bill was referred to a joint

committee of the houses. After elaborate discussion before the committee in which

eminent Members of Parliament and the then Attorney General, C.K. Daphtary and

M.C. Setalvad, former Attorney General, gave their evidence, the joint committee

gave its report on 13 May 1966. The recommendations of the committee were taken

into account and the Judges (Inquiry) Act, 1968 was passed providing for procedure

for the investigation and proof of misbehavior and incapacity of judges of the

Supreme Court (including the Chief Justice of India), the Chief Justices and judges of

the high courts, where reference is made by the Speaker or the Chairman to a threemember

committee after admitting a motion initiated by a specified number of

Members. This is the ‘reference procedure’.

The present Bill of 2005 proposes introduction of ‘complaint procedure’ in

addition to the earlier ‘reference procedure’ contained in the 1968 Act. In a

‘complaint procedure’ any person may make a complaint to a judicial council against

judges of the Supreme Court (except the Chief Justice of India), chief justices and

judges of high courts.

In the place of the three-Member Committee under the 1968 Act, the Bill of

2005 proposes the constitution of a judicial council of five judges consisting of the

Chief Justice of India, two senior most judges of the Supreme Court and two senior

most chief justices of the high court and they will investigate and inquire into

allegations arising out of a complaint or a reference.

Where the allegations are proved, in the case of a ‘complaint procedure’, the

council will submit its report to the President of India who has to forward the same

to Parliament.

One of the serious omissions in the Bill of 2005 is the absence of a power in

the Council to impose ‘minor measures’ under the ‘complaint procedure’, where the

charges which have been proved do not warrant removal but amount to ‘deviant or

bad behavior’ which warrant only ‘minor measures’. (Of course, in the case of a

reference by the Speaker/Chairman on a Motion for removal, the judicial council

may not impose or recommend any ‘minor measures’.

In such cases, in UK, USA, Canada and Germany, the judicial council or

similar bodies have been empowered to impose a variety of ‘minor measures’ such as

(1) issuing advisories, (2) request for retirement, (3) stoppage of assignment of

judicial work for a limited time (4) warning and (5) censure or admonition (public or

private).

‘Minor measures’ were also advocated in the Report of 2001 by the National

Commission for Review of the Constitution of India headed by former Chief Justice

of India, Justice M.N. Venkatachaliah.

The first case which went up to the Supreme Court in connection with an

inquiry under that Act was the case of Justice V. Ramaswami, former Judge of the

Supreme Court. In that case, there was a Motion in the House of the People (Lok

Sabha) on 28 February 1991 and the Speaker of the House appointed Justice P.B.

Sawant Committee on 12 March 1991 after admitting the Motion. The committee

gave its report on 20 July 1992, holding some charges proved. Before the committee

started functioning, the 9th Lok Sabha was dissolved and it was contended that the

Motion in the House lapsed. This plea was rejected by the Supreme Court in

Committee of Judicial Accountability vs. Union of India

report, a plea was raised that the Judge was entitled to a copy of the report before it

was submitted to the House. This was rejected by the Supreme Court in

Ramaswami vs. Union of India

only in case an order of removal was passed by the President.

Thereafter, there were two other judgments of the Supreme Court in

connection with the same learned Judge as reported in

India

committee came up finally for discussion and voting in the House of the People

(Lok Sabha), the Motion for removal did not secure the requisite majority and,

therefore, it failed.

In the case of certain allegations against Justice A.M. Bhattacharjee, the then

Chief Justice of Bombay High Court, the Supreme Court observed in a public

interest litigation case, that in-house ‘peer review’ procedure may be laid down by the

judiciary for correcting misbehavior or deviant behavior and that where the

allegations do not warrant removal of a Judge by address of the Houses, it is

permissible for the in-house mechanism to impose ‘minor measures’.

Sub-3, After the committee prepared theSarojini4. It was observed that the judge may question the reportKrishna Swami vs. Union of5 and Lily Thomas vs. Speaker, Lok Sabha6. When the report of the Justice Sawant3 1991 (4) SCC 689.

4 1992 INDLAW SC 1259, 1992 (4) SCC 506.

5 1992 INDLAW SC 1258, 1992 (4) SCC 605.

6 1993 (4) SCC 434.

In

underscored the need for imposition of certain minor measures in the event of the

proved misbehavior or incapacity not warranting removal. Law declared by the

Supreme Court in its judgments in relation to the Constitution of India, arts. 121,

124 and 217.

The federal judiciaries in US and Canada in their judgments have upheld the

imposition of such ‘minor measures’ by a judicial council (notwithstanding the

absence of any express provision there fore in the US or Canadian Federal

Constitutions) as part of a general power of the judiciary for ‘self regulation’. They

have also observed that entrustment of such a power to the judicial councils does not

amount to abdication of any part of impeachment power of the federal legislature,

inasmuch as the judicial councils may impose only ‘minor measures’ but may not

directly remove. They may only recommend removal.

In

upholding the validity of minor measures (in that case, it was withdrawal of judicial

work under the provisions of the US Act of 1939). He laid down that judicial selfregulation

or in-house measures were part of the ‘administration of justice’ and

derive force from the general power of the judicial branch to improve its efficiency.

Any statute permitting such action is therefore valid, though there is no express

provision for imposing such minor measures in the US Constitution.

The US Act of 1939 was replaced by US Act of 1980 and this was again

replaced by the US Act of 2002. The 1980 and 2002 statutes of US contain express

provisions for imposing ‘minor measures’. So far as removal is concerned, the

C. Ravichandran Iyer vs. Justice A.M. Bhattacharjee7, the Supreme CourtChandler vs. Judicial Council8, Harlan J. laid the legal foundation for7 1995 (5) SCC 457.

8 (1970) 398 US 74.

judicial council of the circuit and the judicial conference of US may only make a

recommendation.

The UK Act of 2005 and the Canadian Bye laws issued under the Canadian

Act of 1985 and the German Constitution, also provide for imposing minor

measures.

In

Orders of the Judicial Conference of US

the US Court of Appeals that, in spite of absence of express provisions in the

Constitution, such in-house or intra-judicial correctional mechanisms for imposition

of ‘minor measures’ were valid and might be imposed by a judicial council, even

though there is no such provision for imposing ‘minor measures’ in the US

Constitution.

Such minor measures would include (1) issuing advisories, (2) request for

retirement, (3) stoppage of assignment of judicial work for a limited time (4) warning,

(5) censure or admonition (public or private).

In this connection, the Law Commission has referred in this report to the

fact that such judicial councils or similar bodies consisting only of judges have been

constituted in several countries such as USA, UK, Canada (federal) and States, Hong

Kong, Germany, Sweden, Pakistan, Bangladesh, Malaysia, Singapore, Israel, Zambia,

Trinidad and Tobago, New South Wales, Victoria.

John H. McBryde vs. Committee to Review Circuit Council Conduct and Disability9, in a very elaborate judgment, it was observed by9 (2001) 264 F. 3d. 52.

COMPOSITION OF JUDICIAL COUNCIL MAY BE CHANGE IN

CERTAIN CIRCUMSTANCES

When the judicial council is conducting investigation or inquiry into allegations

against the judges of the supreme court (in a complaint procedure) or against the said

judges or the Chief Justice of India (in a reference procedure), the judicial council

must not consist of the senior chief justices of the high courts. All the members of

the council must be judges of the Supreme Court. Withdrawal of judicial work may

be of two types, (1) withdrawal pending proceedings and (2) withdrawal of work as

‘minor measure’ at the end of the inquiry

.Where withdrawal of judicial work of a judge as a ‘minor measure’, if it is for

an indefinite period, several judgments including that of Lord Slynn in the Privy

Council in

judicial council by itself may not impose ‘removal’. However, in the US both in the

federal as well as states, the withdrawal of the work by the judicial council are only

for a limited period. The Law Commission has therefore recommended that one of

the minor measures that may be imposed by the council is ‘withdrawal of judicial

work for a limited period’. That will be valid.

The Supreme Court in

judge, if passed under the 1968 Act by the President after reference to the judges’

committee and its recommendation, may be challenged on the judicial side. In order

to preclude such a challenge under the Constitution of India, art. 226, High Court

and in view of the judgment of the Supreme Court in

226 is part of the basic structure of the Constitution, it is necessary to incorporate a

Rees vs. Crane10, have observed that it may amount to removal and theJustice V. Ramaswami’s case, the order of removal of aL.Chandra Kumar’s case that art.10 1994 (1) All ER 833.

provision for appeal to the Supreme Court against (1) the orders of removal passed

by the President in the case of a complaint procedure or reference procedure and (2)

the orders of judicial council imposing ‘minor measures’ in a complaint procedure.

JUDICIAL ACCOUNTABILITY AND LIMITATIONS ON JUDICIAL

INDEPENDENCE

Judicial independence, correctly understood, is not an end in itself. Although it is

sometimes characterised as such in the flowery speeches of public officials, most

thoughtful scholars recognise that judicial independence is an instrumental value - a

means to achieve other ends

limits, defined by the purposes it serves. Disagreement persists as to what those

purposes are, but most would accept some variation on the theme that judicial

independence enables judges to follow the facts and law without fear or favor, so as

to uphold the rule of law, preserve the separation of governmental powers, and

promote due process

who are subject to intimidation from outsiders interested in the outcomes of cases

the judges decide lack the independence necessary to follow the facts and law. At the

same time, one may just as fairly conclude that judges who are so independent that

they may disregard the law altogether without fear of reprisal likewise undermine the

rule of law values that judicial independence is supposed to further.

Although some trumpet judicial accountability as if it were an end in itself,

Accountability like independence is better characterised as an instrumental value that

11. As an instrumental value, judicial independence has12. Given these objectives, one may fairly conclude that judges11 Stephen B. Burbank & Barry Friedman, Reconsidering Judicial Independence, in

Judicial Independence At The Crossroads, 11-14 (Stephen B. Burbank & Barry

Friedman eds., 2002).

12 Rule of Law and the Age of Aquarius, 41 Hastings L.J. 757, 760 (1990).

promotes three discrete ends: the rule of law, public confidence in the courts, and

institutional responsibility.

First, judicial accountability promotes the rule of law by deterring conduct

that might compromise judicial independence, integrity, and impartiality. To say that

judicial accountability promotes judicial independence seems counterintuitive.

Accountability does, after all, diminish a judge's literal independence; the judge who

is made accountable to an impeachment process, for instance, loses her

‘independence’ to take bribes with impunity. But properly employed, Accountability

merely diminishes a judge's freedom to make herself dependant on inappropriate

internal or external influences that might interfere with his capacity to follow the rule

of law. By deterring bribery, favoritism, bias and so on, Accountability promotes the

kind of independence needed for judges to adhere to the rule of law.

Second, judicial accountability promotes public confidence in judges and the

judiciary. Regardless of whether independent judges follow the law, if the public's

perception is otherwise, reforms calculated to render judicial decision-making subject

to popular or political branch control are sure to follow, to the ultimate detriment of

the rule of law itself. A system of judicial accountability that reassures a sometimesskeptical

public that judges are doing their jobs properly and yet respects the

judiciary's independence may forestall resort to more draconian and counterproductive

forms of court control.

Third, judicial accountability promotes institutional responsibility by

rendering the judiciary responsive to the needs of the public it serves as a separate

branch of government. The public is entitled to courts that administer justice

effectively, efficiently, and expeditiously. The judiciary spends taxpayer money just

like the other branches of government and, just like the other branches, the judiciary

must be subject to regulation aimed at making its operations more streamlined and

cost effective

If there is no written Constitution, the constitutional conventions govern. In

our country, the Supreme Court of India laid down more than 42 years ago in

Singh’s case

‘…………though our legislatures have plenary powers, they function within

the limits prescribed by the material and relevant provisions of The

Constitution……..’

‘In a democratic country governed by a written constitution, it is the

Constitution which is supreme and sovereign

In UK

stated that after the coming into force of the (UK) Human Rights Act, 1998, the

British system, which was once based on parliamentary supremacy has now moved

from that principle to the system of Constitutional supremacy.

In Canada

Charter of Rights & Freedoms, Canada has moved from Parliamentary supremacy to

constitutional supremacy. He said that ‘when the Charter was introduced, Canada

went, in the words of Chief Justice Brian Dickson, from a system of Parliamentary

supremacy to constitutional supremacy.’

13.Keshav14 special reference No.1 of 1964, as follows:15’., in International Transport Roth Gmbth vs. Home Secretary16, Laws J, in Vriend vs. Alberta17, Iacobucci J stated that after the Canadian13 Rescuing Judicial Accountability From The Realm Of Political Rhetoric, Charles

Gardner Geyh, 56 Case W. Res. L. Rev. 911.

14 (1965 (1) SCR 413).

15

2363.

16 2002(3) WLR 344.

17 1998(1) SCR 493.

Peoples’ Union for Civil Liberties vs. Union of India 2003 INDLAW SC 290, AIR 2003 SCOur Constitution contains checks and balances which require all the three

wings to work harmoniously. It has created a separation of powers between all the

three branches or wings though the separation, it is now well accepted, is not as rigid

as it is under the American Constitution.

The Indian judiciary’s powers of judicial review to declare Parliamentary and

executive action ultra vires of the Constitution have been recognised ever since 1950,

when the Constitution came into force. Constitution of India, art. 50 states that the

state will take steps to separate the judiciary from the executive in the public services

of the state.

Judicial independence refers to the independence of the judge as well as the

independence of the judiciary as an institution. Individual independence means that

the judge is free to decide a case according to law and he may not be interfered with

by anybody without process. The Indian judiciary is independent and the

Constitution has insulated it from interference both by legislature or executive.

Constitution of India, arts. 121 and 211 prohibit any discussion in the

Parliament or state legislatures on the conduct of a judge of the Supreme Court or

high court in the discharge of their respective duties. The high courts and Supreme

Court are courts of record and have powers to punish for contempt. Under the

Constitution of India, arts. 144, all authorities, civil and judicial, in the territory of

India will act in aid of the Supreme Court.

Judges are also immune under various laws like Judges (Protection) Act, 1985

from civil or criminal action for their acts, speech etc, in the course of or while acting

or purporting to act in the discharge of their official or judicial duties or functions.

However, judges have to abide by the oath they have taken, namely, that ‘they will

bear true faith and allegiance to the Constitution of India as by law established’.

The fact that the powers of judges are very wide is in itself an indication that

the powers may not be allowed to be absolute. Among the constitutional limitations

on the judges, the most important one is the provision for ‘removal’ of judges of the

high courts/Supreme Court by address of the Houses of Parliament to the President

on the ground of ‘proved misbehavior or incapacity’. This is provided in

Constitution of India, art. 124 (2) and (4) in respect of judges of the Supreme Court

and in view of art. 217, that procedure is attracted to the ‘removal’ of judges of the

high court also.

Dato ‘Param Cumarasamy as Vice-President of the International

Commission of Jurists and as former UN Special Rapporteur on independence of

the judiciary, in his speech in November 2004 at Chennai on ‘judicial accountability’

sated that:

‘Accountability and transparency are the very essence of democracy. No one

single public institution or for that matter, even a private institution dealing

with the public, is exempt from accountability. Hence, the judicial arm of the

government too is accountable’.

As

would also be intolerable because they would render impossible the orderly conduct

of the social and economic affairs of a society’, ‘Courts are institutions run by human

beings. Human beings are subject to selfish or venal motives and even moral

paragons differ in the quality of their mental faculties and in their capacity for

Stephen B. Burbank18; says a ‘completely independent court in this sense18 As Stephen B. Burbank, in his recent book on ‘Judicial Independence’.

judgment and wisdom’. ‘Wholly unaccountable Judges are likely to deviate from what

the law might demand’

In the book ‘Judges and Judicial Accountability’ edited by Cyrus Das (2004),

retired Justice Tun Mohd Dzaiddin Abdullah, Chief Justice of Malaysia

‘To be faithful to his oath is the test of his integrity as a judge. Implicit in this

is that he must resist any influence or temptation. Indeed, independence is a

vital component of a judge’s accountability, since a judiciary which is not

truly independent, competent or possessed of integrity would not be able to

give any account of itself’.

‘Thus judicial accountability is an indispensable counterbalance to the judicial

independence, for an unaccountable judge would be free to disregard the ends that

independence is supposed to serve’.

In the federal system in USA

now replaced by the Judicial Improvement Act, 2002, which enables the judicial

council, as part of an ‘in house’ mechanism, to pass final orders short of removal,

such as, request for retirement, withdrawal of cases, public or private censure or

admonition and where the judge is removed, for disqualifying from holding any

other public office etc. the UK Act of 2005, the Canadian Bye laws, Federal

Germany’s Disciplinary Rules and all the States in US provide for ‘minor measures’.

19 said:, the legislature enacted an Act in 1980 which isINTERNATIONAL TRADITIONS ON JUDICIAL INDEPENDENCE

AND ACCOUNTABILITY

19 Judges and Judicial Accountability’ edited by Cyrus Das (2004).

‘

resolution of the UN General Assembly dated 29 November 1985 which endorsed

the proceedings of the 7

Treatment of Offenders passed at Milan, Italy during the period 26 August to 6

September 1985. The UN adopted the basic principles on the independence of the

judiciary by consensus. The UN General Assembly subsequently welcomed the

principles and invited governments ‘to respect them and take them into account

within the framework of their national legislation and practice’, by its proceedings

dated 13 December 1985.

As regards independence of the judiciary, the following seven principles were

laid down:

(1) the independence of the judiciary will be guaranteed by the state and

enshrined in the Constitution or the laws of the country. It is the duty

of all governmental and other institutions to respect and observe the

independence of the judiciary;

(2) the judiciary will decide matters before it impartially, on the basis of

facts and in accordance with the law, without any restrictions,

improper influences, inducements, pressures, threats or interferences,

direct or indirect, from any quarter or for any reason;

(3) the judiciary will have jurisdiction over all issues of a judicial nature

and will have exclusive authority to decide whether an issue

submitted for its decision is within its competence as defined by law;

(4) there will not be any inappropriate or unwarranted interference with

the judicial process, nor will judicial decisions by the courts be

subject to revision. This principle is without prejudice to judicial

review or to mitigation or commutation by competent authorities of

sentences imposed by the judiciary, in accordance with the law;

(5) everyone will have the right to be tried by ordinary courts or tribunals

using established legal procedures. Tribunals that do not use the duly

established procedures of the legal process will not be created to

displace the jurisdiction belonging to the ordinary courts or judicial

tribunals;

(6) the principle of the independence of the judiciary entitles and

requires the judiciary to ensure that judicial proceedings are

conducted fairly and that the rights of the parties are respected; and

(7) tt is the duty of each member state to provide adequate resources to

enable the judiciary to properly perform its functions.

UN Basic Principles on the Independence of the Judiciary’ is contained in theth UN Congress on the Prevention of Crime and theINTERNATIONAL COMMISSION OF JURISTS

PRINCIPLES

: 1981 (SIRACUSA)We will next refer to the instruments promoted by the International Commission of

Jurists. These are contained in the draft principles on the Independence of the

Judiciary (Siracusa Principles), which were formulated during 25-29 May 1981. These

principles also refer to the judicial independence, qualification, selection, postings,

transfer, promotion etc.

INTERNATIONAL BAR ASSOCIATION MINIMUM STANDARDS OF

JUDICIAL INDEPENDENCE

, NEW DELHI (1982)We will next refer to the minimum standards of judicial independence laid down by

the International Bar Association. These were adopted by the 19

Conference held in New Delhi in October 1982. They deal with judicial

independence, the terms and nature of judicial appointments. So far as the subject of

discipline and removal of judges is concerned, these are contained in paras 27 to 32

and read as follows:

‘(27) The proceedings for discipline and removal of judges must ensure

fairness to the judge, and adequate opportunity for hearing.

(28) The procedure for discipline must be held in camera. The judge may

however request that the hearing be held in public, subject to final and

reasoned disposition of this request by the disciplinary tribunal. Judgments in

disciplinary proceedings, whether held in camera or in public, may be

published.

(29) The grounds for removal of judges will be fixed by law and will be

clearly defined.

(30) All disciplinary actions will be based upon standards of judicial conduct

promulgated by law or in established rules of court.

(31) A judge will not be subject to removal unless, by reason of a criminal act

or through gross or repeated neglect or physical or mental incapacity, he has

shown himself manifestly unfit to hold the position of judge.

(32) In systems where the power to discipline and remove judges is vested in

an institution other than the Legislature, the tribunal for discipline and

removal of judges will be permanent and be composed predominantly of

members of the Judiciary.

th BiennialWORLD CONFERENCE OF INDEPENDENCE OF JUDICIARY

,MONTREAL

, 1983We will next refer to the World Conference on the Independence of Judiciary held at

Montreal in 1983. The resolution related to the Universal Declaration on the

Independence of Judges. After dealing with the independence and accountability of

international judges, it dealt with national judges separately. Para 2 of part II after

referring to independence of the judiciary; para 3 refers to the qualifications,

selection and training; para 4 relates to posting, promotion and transfer and para 5 to

the tenure. Para 6 deals with immunities and privileges and para 7 with

disqualifications. Para 8 deals with discipline and removal.

CARACAS CONFERENCE

, 1999Another Conference on Independence of judges and lawyers was organised at

Caracas, Venezuela during 16-18 January 1999 by the International Commission of

Jurists. The Conference passed a plan of action upholding the principles of rule of

law, independence of the judiciary and human rights.

BANGALORE PRINCIPLES OF JUDICIAL CONDUCT

, 2002We will next refer to the Bangalore Principles of Judicial Conduct, 2002, which after

referring to the UN Basic Principles on the Independence of the Judiciary, set out

earlier formulated various principles relating to the independence of the judiciary

.BRIEF CHRONOLOGY OF JUDGEMENTS IN JUSTICE V

.RAMASWAMI

’S CASESJustice V. Ramaswami was appointed as Chief Justice of the High Court of Punjab

and Haryana and there were certain allegations of financial impropriety and other

irregularities against him while he was working as Chief Justice of that High Court at

Chandigarh. By the time of the inquiry, he had been elevated to the Supreme Court.

The then Chief Justice of India, Justice Sabyasachi Mukharji, took note of the

allegations and advised Justice Ramaswami, to abstain from judicial functions until

the allegations were cleared. On 18 July 1990, upon receipt of the letter, Justice V.

Ramaswamy applied for leave for six weeks in the first instance with effect from 23

July 1990. The Chief Justice directed the office to process his application for leave.

These facts are contained in statement of the Chief Justice of India to the Bar dated

20 July 1990.

The Chief Justice of India then appointed a Committee consisting of three

Judges of the Supreme Court (B.C. Ray, K.J. Shetty and M.N.Venkatachaliah JJ),

presided over by Justice B.C. Ray, to go into the facts to find out whether there was

any prima facie truth in the allegations requiring the judge not to exercise judicial

functions.

Thereafter, on 28 February 1991, 108 Members of the Lok Sabha presented a

Motion to the Speaker of the 9th Lok Sabha for Address to the President for the

removal of the learned Judge under the Constitution of India, art. 124(4) read with

the provisions of Judges (Inquiry) Act, 1968. A three member committee consisting

of Justice P.B. Sawant, Judge of the Supreme Court, Justice P.D. Desai, Chief Justice

of Bombay High Court and Justice O. Chinnappa Reddi, a Jurist who was also

former judge of the Supreme Court, to investigate into the grounds on which the

removal was prayed for.

Sub Committee of

Judicial Accountability vs. Union of India20We will refer to the various constitutional issues decided in the judgment separately.

After the said judgment, the Committee started the inquiry and framed 14 charges on

the basis of the allegations. Justice V. Ramaswami did not participate in the inquiry in

spite of notice. The Committee took evidence and prepared an elaborate report in

20 1991(4) SCC 103 699).

regard to 14 charges, on 20 July 1992. They held charge Nos. 1, 2, 3, 4, 7, 8, 9, 11, 13

and 14 have been proved, that charge No. 5 was not proved (subject to the finding

on charge No. 7), charge Nos. 6 and 10 were also not proved. It held that charge No.

12 was partly proved.

Justice Ram swami’s wife Sarojini Ram swami filed writ petition 514 of 1992

requesting for a direction that the Committee hand over a copy of the report to

Justice Ramaswami before it was submitted to the Speaker of the Lok Sabha in order

to enable Justice V. Ramaswami to question the findings of the Committee in judicial

review proceedings in a court of law.

Sarojini Ramaswami vs. Union of India

21Several important constitutional principles were again laid down by the Supreme

Court in this judgment to which we will be referring in detail. Thereafter, one Mr.

Krishnaswamy who was a Member of Parliament filed a writ petition (WP. 149 of

1992) seeking a review of the earlier judgment of the Supreme Court in

on Judicial Accountability vs. Union of India

Another person Raj Kanwar filed a writ petition 140 of 1992 contending that

the notice of Motion and its admission by the speaker were unconstitutional. Both

these writ petitions were dismissed by the Supreme Court by its third judgment in

Sub Committee22.Krishnaswamy vs. Union of India

Parliament, Justice V. Ramaswami was given a copy of the Report and he, in fact,

filed a written memorandum before the Parliament. In Parliament, he was

represented by Kapil Sibal, Senior Advocate. Several Members having abstained, the

23. After the report of the Committee was tabled in21 1992(4) SCC 506.

22 1991(4) SCC 699.

23 1992(4) SCC 605 on 27 October 1992.

Motion for removal did not ultimately succeed. Thereafter one Lily Thomas filed a

writ petition stating that those Members of Parliament, who abstained from voting,

must be deemed to have accepted the findings of the Committee. This writ petition

was dismissed.

The Committee then referred to the provisions of the Judges (Inquiry) Act,

1968 and the Judges (Inquiry) Rules, 1969 and pointed out that the judges of the

Supreme Court and the high court exercise vast powers under the Constitution and

the laws and that the vastness of the powers and the immunity granted to them

required, that judges must be fearless and independent, but they must adopt a high

standard of rectitude so as to inspire confidence in the public who may seek and who

may want to seek redress in the court. While it was necessary to protect the judges

from false and malicious attacks, it was also necessary to protect the fair image of the

institution of judiciary from those judges who conducted themselves in a manner as

to blur that image.

It then considered the meaning of the word ‘proved misbehavior’ used in the

Constitution and stated that these words were perhaps borrowed from Australian

Constitution, s. 72(ii). They referred to the opinions of Dr. Griffith, Solicitor General

and of C.W. Pupincus QC, which were placed before the Senate in Australia in the

case of alleged misbehavior of Justice Murphy. The Committee then referred to an

article by Wrisley Brown

judge of the Federal Judiciary in USA. The Committee also referred to the cases in

USA of Judge Steward F. La Motte

to the cases of Judge Walter L Nicson

24 as to what conduct would warrant impeachment of a25, to the case of Judge Harry E. Claiborne26 and27, Judge Alcee L. Hastings,28 and of Judge24 Harvard Law Review, Vol. 26, p.684.

25 Jr (FLA) 341 Southern Reporter (2d series 513).

26 Report 99 – 688, 9th Congress 2

27 Jr (101 – 36 or 101st Congress first Session).

nd Session.Richard A Napolitano

One of the important propositions laid down by the Committee is related to the

‘standard of proof’ required in impeachment proceedings. The Committee referred

to an article by Chief Justice Ben F. Overton of the Supreme Court of Florida, in the

Chicago-Kent Law Review. In the US, the standard of proof was higher than

preponderance of probabilities, namely, the standard required was ‘clear and

convincing evidence’ and that was the standard required in the case of ‘misbehavior’,

which was treated as an impeachable offence. The Committee felt that the standard

in our country must be ‘proof beyond reasonable doubt’.

They further added as follows: ‘The Constitution, the Judges (Inquiry) Act,

1968 and the Judges (Inquiry) Rules, 1969, give us an indication, however slight it

may be, that an inquiry into the act is thought to share the nature of quasi criminal

proceedings. The word ‘investigation’ usually associated with criminal cases is used

both in the Constitution of India, art. 124(4) and the Judges (Inquiry) Act, 1968. The

Committee is required by the Judges (Inquiry) Act, 1968, s. 3(3) to frame definite

‘charges’ against the judge on the basis of which the investigation is proposed to be

held. The Judges (Inquiry) Act, 1968, s. 6 uses the words ‘guilty’ and ‘not guilty’.

Judges (Inquiry) Rules, 1969, r. 7 talks of ‘plea of judge’ and again uses the words

‘guilty’ and ‘not guilty’. In our view, the use of the words ‘investigation’, ‘charge’,

‘plea’, ‘guilty’ and ‘not guilty’, all of which are ordinarily associated with criminal

proceedings, do inform us of the quasi-criminal nature of the proceedings’. ‘In fact,

as far back as 1870, the Privy Council issued a memorandum of the removal of

colonial judges where it described.

29, and finally to the case of Stephen Chandler vs. Judicial Council30.28 (Report 100 – 810, 110th Congress second Session).

29 (317 F. Supp. 79 (1970)).

30 10t h Circuit of the US (398 US 74).

The removal procedure in the United States for impeachment on the ground

of ‘conviction for treason, bribery or other high crimes or misdemeanors’ in the

federal system. The majority of the states also have similar provisions for removal of

judges of states. In some states, provision was made for removal by an address of the

governor to both houses of legislatures or by a joint resolution of the legislatures. In

some states the removal power was vested in the state Supreme Court while in some

states special courts were provided to hear removal charges. In the State of New

York, the Court was known as the ‘Court on the Judiciary’

passed in 1932 (incorporated in Title 28 of the US Code) and that law was replaced

by another Act in 1939, which made provision for judicial councils. That law was

replaced by the Judicial Councils Reform and Judicial Conduct and Disability Act,

1980. In this enactment, judicial councils were empowered to receive complaints

against judicial conduct, which was ‘prejudicial to the effective and expeditious

administration of the business of the courts, or alleging that such a judge or

magistrate is unable to discharge all the duties of office by reason of mental or

physical disability’. That Act prescribed an elaborate judicialised procedure for

processing such complaints within the administration system of the judicial councils

concerned and the judicial conference of US. So far as states were concerned, 50

States had laws for disciplining their judges and in each, a variously constituted

commission was organized in either a single tier or in many tiers depending upon the

perceived desirability of separating fact finding from judgment and recommendation

tasks. The Commission’s recommendations would be transmitted to the State

Supreme Court for its authoritative imprimatur, except in states where they were to

be received by the legislatures that retained judicial removal power

31. A federal law was32.31 Henry J Abraham, the Judicial Process, 3rd Ed, p. 45.

32 Robert J. Janosik, Encyclopedia of the American Judicial System, Vol. II., p. 575-78.

B.C. Ray J then referred to the First World Conference on the Independence

of Judges held at Montreal on 10 June 1983 and to the following clauses in the

Universal Declaration on the Independence of Justice which concerned ‘discipline

and removal of national judges’:

‘Clause 2.32 - A complaint against a judge will be processed expeditiously and

fairly under an appropriate practice, and the judge will have the opportunity

to comment on the complaint at the initial stage. The examination of the

complaint at its initial stage will be kept confidential, unless otherwise

requested by the judge.

Clause 2.33 (a) - The proceedings for judicial removal or discipline, when

such are initiated, will beheld before a court or a board predominantly

composed of members of the judiciary and selected by the judiciary. (b)

However, the power of removal may be vested in the legislature by

impeachment or joint address, preferably upon a recommendation of a court

or board as referred to in 2.33(a).

Clause 2.34 - All disciplinary action will be based upon established standards

of judicial conduct.

Clause 2.35 - The proceedings for discipline of judges will ensure fairness to

the judge and the opportunity of a full hearing.

Clause 2.36 - With the exception of proceedings before the legislature, the

proceedings for discipline and removal will be held in camera. The judge

may, however, request that the hearing be held in public, subject to a final

and reasoned disposition of this request by the disciplinary tribunal.

Judgments in disciplinary proceedings, whether held in camera or in public,

may be published.

Clause 2.37 - With the exception of proceedings before the legislature or in

connection with them, the decision of a disciplinary tribunal will be subject

to appeal to a court.

Clause 2.38 - A judge will not be subject to removal except on proved

grounds of incapacity or misbehavior, rendering him unfit to continue in

office.

Clause 2.39 - In the event that a court is abolished, judges serving in this

court will not be affected, except for their transfer to another court of the

same status’.

RECOMMENDATIONS AND VIEWS OF LAW COMMISSION ON

JUDGES

(INQUIRY) BILL, 2005Judicial independence is not absolute. Judicial independence and accountability are

two sides of the same coin. The present proposals in the Bill of 2005 together with

recommendations for enabling the judicial council to impose ‘minor measures’

including stoppage of assignment of judicial work are constitutional. They ought not

to be viewed as an encroachment on judicial independence by the executive or by the

legislature.

Bill of 2005, s. 3(1) provides for the establishment of a National Judicial

Council consisting only of judges is constitutionally valid and is consistent with the

concept of independence of judiciary, judicial accountability and doctrine of

separation of powers. S. 2(d) be substituted by the following definition: (d) ‘Judge’

means a Judge of the Supreme Court or of a high court and includes the chief justice

of a high court and also the Chief Justice of India for purposes of the reference

procedure but will not include the Chief Justice of India for the purposes of the

complaint procedure; ‘complaint procedure’ means a procedure which is initiated by

way of a complaint to the council under s. 5; ‘reference procedure’ means a

procedure which is initiated by way of a motion for removal which is referred by the

speaker or chairman to the council.

A special provision be inserted in the Bill of 2005 to enable the judicial

council to impose ‘minor measures’, in the complaint procedure. The omission in the

Bill of 2005, in this behalf, needs to be rectified by providing, in the case of a

complaint procedure, for the imposition of following minor measures by the

National Judicial Council, viz.,

(1) Issuing advisories;

(2) Issuing warnings;

(3) Withdrawal of judicial work pending and future for a limited time;

(4) Request that the judge may voluntarily retire;

(5) Censure or admonition, public or private.

It is not permissible for the judicial council to recommend imposition of

minor measures on a reference by the speaker/chairman of either House of

Parliament. The judicial council may itself impose such ‘minor measures’ while

disposing of the complaint. However, while returning the reference to the House it

may not recommend any minor measure to be passed by the House.

The procedure in the Judges (Inquiry) Act, 1968 and in the proposed Bill of

2005 enabling investigation/inquiry by the judicial council by way of a complaint

procedure, in addition to a reference procedure, is not an infringement of the

Parliamentary process contained in art. 124(4) and does not amount to impermissible

delegation and is valid.

Bill of 2005, s. 22 permits the judicial council itself to conduct an

investigation or appoint a committee to conduct the investigation is constitutionally

valid. It is permissible for Parliament to make a law to provide that the judicial

council might, as an interim measure, recommend withdrawal of judicial work from a

judge of the Supreme Court or high court, for the purpose of an effective

investigation and inquiry.

Bill of 2005, s. 5(2) has been amended to provide that the complaint must be

in the form prescribed in the rules, must give full particulars of the ‘misbehavior or

incapacity’ which is the subject matter of the allegation and must contain a

verification as to which of the allegations are within the personal knowledge of the

complainant and which are based on information received and from whom.

There must be a provision in the Bill of 2005 that every complainant and

every person including a witness and a lawyer who participates in the investigation

and inquiry, whether or not he seeks confidentiality about his name, must undertake

to the judicial council that he will not reveal his own name, the name of the judge

complained against, the contents of the complaint or any of the documents or

proceedings to anybody else including the media without the prior written approval

of the judicial council and it will be for the judicial council to decide when and to

what extent the contents of the complaint will be disclosed to the public. It must be

made clear that this is notwithstanding anything contained in the Right to

Information Act, 2005. Once the enquiry is completed before the judicial council, if

`minor measures’ are imposed on a complaint procedure, the same may be published

by the judicial council with the qualification that in the case of `private censure or

admonition’, the name of the complainant and of the judge concerned will not be

published. In the case of recommendation for removal, since the report is to be

submitted to the Speaker/Chairman, it will be for the Speaker/Chairman to decide

when such report may be published. Bill of 2005, s. 19 must be amended to provide

that the violation of the confidentiality provisions abovementioned would be an

offence and that procedure for punishing such offence would be as prescribed under

the Bill of 2005, s. 20

A right of appeal to the Supreme Court is available only to the judge who is

aggrieved by an order passed against him either for removal or where it is a final

order of the judicial council imposing minor measures. The Bill of 2005 must include

a provision to make it clear that where a judge of the high court or Supreme Court

who is under investigation or inquiry before the judicial council, reaches the age of

superannuation during the pendency of the said proceedings, the proceedings may be

continued for the purpose of imposing the minor measures such as censure or

admonition, public or private.

The Bill of 2005 must be made applicable to complaints relating to

‘misbehavior’, which occurred before the commencement of the proposed

enactment but restricted to a period of two years before the commencement of the

enactment provided the judge has not retired by the date the complaint is filed

before the judicial council.

33.CONCLUSION

No person, however high, is above the law. No institution is exempt from

accountability, including the judiciary. Accountability of the judiciary in respect of its

judicial functions and orders is vouchsafed by provisions for appeal, reversion and

review of orders. What is the mechanism for accountability for serious judicial

misconduct, for disciplining errant judges. Our Constitution provides for removal of

33 Judges (Inquiry) Bill 2005.

a judge of the Supreme Court or the high court for proved misbehavior or proved

incapacity, by what is popularly called the process of impeachment, where under two

thirds of the members of each House of Parliament may vote for the removal of the

judge.

As an instrumental value, judicial independence has limits, defined by the

purposes it serves. Disagreement persists as to what those purposes are, but most

would accept some variation on the theme that judicial independence enables judges

to follow the facts and law without fear or favor, so as to uphold the rule of law,

preserve the separation of governmental powers, and promote due process. Judicial

independence, correctly understood, is not an end in itself. Although it is sometimes

characterized as such in the flowery speeches of public officials, most thoughtful

scholars recognise that judicial independence is an instrumental value-a means to

achieve other ends.

Given these objectives, one may fairly conclude that judges who are subject

to intimidation from outsiders interested in the outcomes of cases the judges decide

lack the independence necessary to follow the facts and law. At the same time, one

may just as fairly conclude that judges who are so independent that they may

disregard the law altogether without fear of reprisal likewise undermine the rule of

law values that judicial independence is supposed to further.

Judicial Accountability promotes the rule of law by deterring conduct that

might compromise judicial independence, integrity, and impartiality. To say that

judicial accountability promotes judicial independence seems counterintuitive.

Accountability does, after all, diminish a judge's literal independence: the judge who

is made accountable to an impeachment process, for instance, loses his/her

‘independence’ to take bribes with impunity. But properly employed, Accountability

merely diminishes a judge's freedom to make herself dependant on inappropriate

internal or external influences that might interfere with her capacity to follow the

rule of law. By deterring bribery, favoritism, bias and so on, Accountability promotes

the kind of independence needed for judges to adhere to the rule of law.

After the making of the proposed bill (Judges (Inquiry) Bill 2005), it will be

going to pass in the session of Parliament. The present Bill of 2005 proposes

introduction of ‘complaint procedure’ in addition to the earlier ‘reference procedure’

contained in the 1968 enactment. In a ‘complaint procedure’ a complaint may be

made by any person to judicial council against judges of the Supreme Court (except

the Chief Justice of India), chief justices and judges of high courts.

It will also put restriction and it will make sure that no organ of the state

cross its limit. Meaning thereby it will put restriction on the biasness by any judges

and them accountable to the public at large to establish independence of judiciary as

well as rule of law.

As it is rightly said by Clifford Wallace J.

‘Judicial corruption certainly exists, I know of no country that is completely

free of corruption, with its insidious effect of undermining the rule of law.

Attempts to solve judicial corruption, however, may themselves weaken the

rule of law if the judiciary comes under the influence or control of legislative

or executive branch. The challenge to all the governments, therefore, is to

eradicate judicial corruption without intruding on the independence of

judiciary’.

34:34 Former Chief Judge, U. S. Court of Appeals ( Ninth Circuit).