Challenge of holding judges accountable

A speech given by Allahabad High Court Judge Shekhar Kumar YadavAn event organized by the Vishwa Hindu Parishad’s legal cell inside the court complex on December 8, which made clear their biases towards the Muslim community, once again highlighted the difficulty in India’s review mechanism in holding higher judiciary judges accountable. Has been exposed. ,

The review mechanism requires a decision on “proven misbehavior or incompetence” to be taken by a three-member committee constituted under the Judges (Investigation) Act, 1968. This committee works like a trial court, but is set into action only after a successful attempt. Impeachment of the judge concerned is done in either the Lok Sabha or the Rajya Sabha, which must be approved by the presiding officer of the House – the Speaker, or the Vice President/Chairman in the case of the Lok Sabha. Rajya Sabha. The provisions of this mechanism come from Articles 124 (4), (5), 217, and 218 of the Constitution of India and the Judges (Investigation) Act, 1968.

EditorialBench and fanaticism: On the controversial remarks of Allahabad High Court judge

Justice V. Ramaswami’s case

Barring Justice Yadav, against whom an impeachment attempt has been made, only two of the seven judges have so far been found guilty of their “misbehaviour” by a three-member committee, comprising a Supreme Court judge, a Chief Justice Needed High Court and an eminent jurist.

The first was retired Supreme Court judge V. Ramaswamy, who was found guilty of excessive expenses like buying air conditioners, luxury furniture and beds at his official residence without following due process, just like Trinamool Congress MP Mahua Moitra. There were allegations made. The ruling BJP last year. Although such misdeeds of ongoing accounts of corruption seem like an arcane controversy over propriety, they nevertheless enlivened the public discussion on a judge’s conduct in the late 80s and early 90s. Such discussions laid the foundation for the ‘Restatement of Values ​​of Judicial Life’ adopted by the Supreme Court on May 7, 1997 as a code of conduct for those holding high positions in the judiciary.

talking to The Hindu, Retired Madras High Court judge K. Chandru, who played a key role in the impeachment proceedings against Justice Ramaswamy, recalled how the judge “purchased 6+1=7 maces, one of which was silver headed, to signal the arrival of the Chief Justice and Took it.” After his elevation as Chief Justice of the Punjab and Haryana High Court in 1988, by a cargo plane, and not by rail. Justice Chandru said, “No tender process was adopted for the purchase of maces.” He was referring to the colonial practice followed in the Madras HC, where an orderly walks before a judge to signal his arrival so that “decency can be maintained” to those present in the hallway and courthouse. Justice Ramaswami thought it appropriate to continue this practice in the Punjab and Haryana High Court, where this practice did not exist as it was established in independent India, much to the shock of his “brother judges”. In his Tamil book, I also became a judgeJustice Chandru recalled a letter dated August 18, 1988, in which colleagues of then Chief Justice V. Ramaswamy had written, “You will recall that most of us told you later also that we were opposed to the introduction of maces . Maces are merely a relic of the imperial past and do not conform to the socialist pattern of our society.

The adverse verdict of the three-member panel constituted under the Judges Inquiry Act against V. Ramaswamy set the precedent of the then CJI Sabyasachi Mukherjee deciding not to allocate any work to him in 1993. The failure of the impeachment motion in the Lok Sabha that year did not lead to reversal of the CJI’s decision. No case was listed for hearing before Justice Ramaswamy’s bench until his retirement three years later.

Article 124(4) of the Constitution states that the panel’s findings must be voted on by Parliament. Removing a judge requires a two-thirds majority of sitting MPs voting in favor of the motion, or an absolute majority in each house. On 10 May 1993, out of 401 members present in the Lok Sabha, 196 voted in favor of Ramaswami’s removal. Although no one voted against the motion, the ruling Congress’s 205 votes ensured the defeat of impeachment.

resignation before accountability

The second judge to face an impeachment motion was Justice Soumitra Sen of the Calcutta High Court. Justice Sen became the first judge of the higher judiciary of India to be voted for removal by the Rajya Sabha by an overwhelming majority, but he resigned in September 2011, days before the motion was tabled in the Lok Sabha. Justice Sen was found guilty of misappropriating ₹33.23 lakh as a court-appointed receiver while acting as an advocate in a case in 1983 and misrepresenting the facts before a Calcutta court.

Similarly, the Chief Justice of Sikkim High Court, PD Dhinakaran, resigned on July 29, 2011, the day of the first meeting of the three-member panel constituted under the Judges Inquiry Act to investigate 16 allegations, some of which were serious. After becoming a judge of the Madras High Court, he allotted more than 300 acres of land from farmers in Tiruvallur district of Tamil Nadu.

Such examples highlight that members of India’s higher judiciary enjoy a disproportionately high level of immunity compared to elected officials because they continue to enjoy “the benefits of being a retired judge such as a pension” and other benefits. Are, said jurist Mohan Gopal, who was part of the three-member committee in the Dinakaran case. Such resignations nullify the trial and subsequent impeachment, something that even current or former chief ministers do not get to do, as was the case with Jayalalithaa on her disproportionate assets plea in 2014.

The Forum for Judicial Accountability (FJA), which led the campaign against judicial corruption in the Dhinakaran case, had written to the three-member committee on August 6 that year, seeking to continue the committee’s investigation, arguing that “the jurisdiction of the committee is untouched.” Is.” By the fact of removal…”. The FJA’s argument was that the process of removing a judge has two distinct parts – one that relates to the finding of offence, which is governed by Article 124(5) and the other Impeachment, which is governed by Article 124(4), is within the jurisdiction of Parliament. “The purpose of impeachment is not merely to remove people from office, but to hold those people accountable,” the FJA argued. Important Whose trust is accused of being broken and whose faith in the judiciary needs to be strengthened.”

“Although Article 124(5) of the Constitution uses the words “removed from office” and is silent on the issue of disqualification from holding office in future, in the event of a finding of guilt by the Committee and the subsequent proceedings in Parliament The disqualification will affect the person from holding public office in future. It is noteworthy that Justice V. Ramasamy continued to hold office as a Supreme Court judge even after being found guilty by the committee and taking advantage of the defeat of the impeachment motion. Retired with benefits. After retirement he was appointed Chairman of Tamil Nadu Law Commission,” the FJA said.

need to complete action

RTI petitions by former borderline Legal Affairs editor, V. Venkatesan, revealed that jurist Mohan Gopal and retired judge Aftab Alam, chairman of the three-member panel, both believed that the work of the committee should continue. The RTI response made public a set of correspondence between Mohan Gopal and two members of the committee and the committee’s Rajya Sabha Chairman Hamid Ansari. Mr. Venkatesan included these letters as an appendix to his 2014 book Constitutional Terms: Challenges to India’s Democratic ProcessIn his letter to Justices Aftab Alam and JS Kehar, then Chief Justices of the Karnataka High Court, dated August 15, 2011, Mr. Gopal writes, “The resignation of Justice PD Dhinakaran presents an unprecedented situation for our Committee. Whatever decision we take will have a deep and far-reaching impact on the framework of judicial accountability in our country – both in terms of the future implementation of the Judges Inquiry Act, 1968, and in the context of the present manner. The constitutional and legal framework for judicial accountability has been improved… Although undoubtedly the stage of investigation and evidence arises only when removal from office is prayed for and that is the necessary first step or that purpose, to ignore it would be a It would be a mistake to assume that the independent role and value of the investigation and evidence are part of the process in and of themselves… One view is that resignation would result in the process of investigation and evidence being abrogated, in effect in the hands of the judge who is the object of the investigation. and has the power to end it Resignation and investigation against him – an absurd situation which the legislature would not have intended. In such circumstances, there would be no incentive for any judge to avoid misconduct because any judge can resign from office at any time and terminate the investigation into the allegations against him.

While Chairman Justice Aftab Alam agreed and sought continuation of the committee, the request was rejected by Rajya Sabha Chairman Hamid Ansari.