• Shanmukha Aditya

The Supreme Fort

On the afternoon of 10th May 1993, Somnath Chatterjee, a 64-year old lawyer-turned-legislator rose in Lok Sabha to pass a motion. He began, saying, “Mr. Speaker sir, with deep anguish in response to the call of duty to the nation I rise to move the following …”

Quarter of a century later, on January 12, 2018, four senior-most judges of the Supreme Court after the Chief Justice of India convened a hasty press conference. Justice Chalameshwar, who did most of the talking, began, “It is with no pleasure in our hearts, we were compelled to take this decision to call for a press conference.”

What agitated Somnath Chatterjee then, and Justice Chalameshwar more recently, is a thorn embedded in the doctrine of separation of powers. Both actions, although presented by individuals occupying varied constitutional positions, represented first steps in kickstarting a Byzantine process, whose twists and turns baffle the spectator. While Chatterjee rose to introduce his motion to “present an address to President under Clause (4) of Article 124 of the Constitution for Removal from Office of Justice V Ramaswami of the Supreme Court of India for His Acts of Misbehaviour”, Justice Chalameshwar’s press conference sought to present to the public the irregularities committed by the then Chief Justice of India in allotment of specific cases to specific benches.

Judicial dismissals, unlike judicial appointments, raise few commentaries of distaste. A lot of this is silence is not because of the process being settled; removal from judicial office entails complexity by-design, resulting in the process to be rarely attempted. Judicial dismissals in higher courts have rarely been attempted, and have all ended in vain. Nonetheless, this thorn makes multiple pricks, covering the spectra of judicial corruption, judicial accountability, and, ironically, even judicial appointments. The recent extraordinary letter from the Chief Minister of Andhra Pradesh to the CJI accusing a Senior Judge of the Supreme Court of irregularities is a case-in-point. In the not-so-long history of differences between the three organs of the State, this is not quite a new chapter. It is but the turning of a page.

The procedure for removing a judge from Office – is covered by Articles 124(4) – for the Supreme Court, and 217 – for the High Courts. As the words “proven misbehavior and incapacity” have been found vague enough to warrant a legislation, the Parliament passed the Judges (Inquiry) Act, 1968, laying down threadbare, the procedure of removing a judge from their Office.

To and Fro

The procedure enshrined in the Judges Act for removal of a Judge has recently acquired the name “reference procedure”. It is peppered with vetoes and closures, which, as we shall see, has stalled judicial inquiries of the highest order.

Firstly, a “motion” needs to be introduced by at least 100 members (for Lok Sabha) or 50 members(for Rajya Sabha), detailing preliminary allegations against the Judge. Then, the Speaker/Chairman, as the case may be, shall apply his mind and consult persons he deems fit, and then accept/reject the motion.

Once the motion is accepted, it is kept pending, and a three-member inquiry committee is constituted. The law specifies that one of the members be either the CJI or a Judge of the Supreme Court, one be a Chief Justice of a High Court, and another be a distinguished jurist. Once the committee finishes its investigation, including hearing the accused Judge, it examines the charges framed, and evaluates if the Judge needs to be indicted. If yes, then the report is forwarded to the Speaker/Chairman. If no, then the matter rests there. The removal proceedings are rejected.Now that we are through with the process, it would be instructive to take a glance at two cases where the proceedings assumed importance.

Prorogued or Dissolved: Justice Ramaswami

As allegations of corruption mounted against Justice V Ramaswamy in mid-1990, he was elevated to the Supreme Court. Thereafter, he took a leave pending an in-house inquiry by the Supreme Court (note that this is not related to the inquiry under the Judges Act). The Ninth Lok Sabha was informed of these irregularities in late – February. No sooner had the Speaker constituted the committee than the Lok Sabha was dissolved, and general elections were called for. The committee prepared its report examining the 11 charges against Justice Ramaswamy, held him guilty for some of them, and forwarded the report to the Speaker.

After the constitution of the 10th Lok Sabha, before Somnath Chatterjee rose to move his motion, a curious scene erupted with a few members holding that since the 9th Lok Sabha, which initiated the inquiry has elapsed, beseeching the current members to take up the motion would be unfair. This argument came despite the Supreme Court, in the Sub-Committee on Judicial Accountability vs Union of India case, categorically held that the motion and the constitution of the committee shall escape the lapse of the House.

After the motion was taken up, veteran advocate Kapil Sibal appeared for Justice V Ramaswamy and pleaded on his behalf in the Lok Sabha. Eternally captured by the parliamentary archives, the motion was put to vote the next day. In an atypical premonition of how complicated the process is, the Motion secured 194 ayes and zero noes. Put differently, the motion did not pass muster not because the House was against it – in fact, no one was. What stopped it from passing was that it could not garner the special majority – (⅔) of all members present and voting. It led Chatterjee to wryly remark: “No Hon. member of this House is against the motion. Therefore, the judge should understand that there is only one view.”

Self Goal: Justice Dipak Misra

While allegations surfaced against Chief Justice Dipak Misra on selective allocation of cases for specific benches – under his authority as the Master of the Roster, what lit the powder keg was the press conference held by his brother judges. This led to a motion for his removal from office by members of the Opposition parties in Rajya Sabha in April 2018. However, the Chairman of the Rajya Sabha rejected the motion: terming it “neither tenable nor admissible”. Needless to add, the motion was laid to rest.

Road to Reform: Steep Bends, Sharp Cliffs

Both the cases examined here are similar: in the media attention they received and in them ending midway. Both judges have retired after the end of their terms. Abstaining from venturing into the merits of the cases against each, it can safely be commented that even when an inquiry is conducted – if at all – proving a case and securing removal from judicial office is a taxing process. In fact, Justice Ramaswami had lamented that media coverage was placing him in the wrong light, and he could not effectively pursue his case. Be that as it may, venturing into the fortress of Judiciary has always been an uphill battle. Few daring attempts, including the SP Gupta (First Judges) Case of 1981 and the NJAC Act, have been turned around or declared unconstitutional.

However, we are solidly mistaken if we believe that this is a one-way street. While Parliament holds on to the slim – but complex – process of removing a Judge, it grasps it with all strength. A case in point is a piece of legislation that stalled at the Standing Committee of Law and Justice. It was titled “The Judges (Inquiry) Bill, 2005, which sought to replace its predecessor of 1968.

This was no ordinary Bill. The Law Commission’s 195th Report, which extensively dealt with a previous draft of the Bill acknowledged that “…no other earlier reference to the Law Commission in the past fifty years has been as important….” The Standing Committee eventually disagreed with the constitutionality of this Bill. Needless to say, it is critical to dwell upon a few major aspects the Bill aims to address.

Complaint Procedure: Sound the Bugle

In addition to the current “reference procedure” for the removal of Judges, the Bill aimed to establish a second “complaint procedure”, by which any individual can complain and thus, initiate an inquiry into judicial misconduct. The Bill sought to form a permanent “National Judicial Council”, for conducting inquiries received under the complaint procedure and the reference procedure. The Council, as the Bill mentioned, shall consist of the Chief Justice of India, two senior-most judges of the Supreme Court, and two Chief Justices of the High Courts.The complaint procedure cannot be used against the Chief Justice of India. If under reference procedure, a complaint is filed against the Chief Justice of India, then the President shall designate the next senior-most judge to investigate the inquiry under the NJC. A report concluded on the basis of a complaint will be submitted to the President, who shall have to place the report before the Parliament. If the Council feels the allegations are unsubstantiated, the matter ends there.

‘Minor Measures’

The Law Commission noted that the current procedure for censuring a judge is the removal of office alone. No other “in-house” measures, including admonition, withholding of judicial work, or voluntary retirement, have legislative guarantee. For sure, these measures are incorporated by the higher judiciary in the conduct of the subordinate judges, but their absence from the letter of the law leaves a gaping hole.

Thus, the Commission recommended adding minor measures (described above), to take to task errant judges, rather than follow the excessively complicated process of removing a judge via address to the President.

Tug of Turf

As the Bill was introduced in the Lok Sabha, it was sent for consideration of the Standing Committee on Personnel, Grievances, Law and Justice. Its report spelt out several shortcomings: including the fact that by running reference procedure and complaint procedure simultaneously, the Bill tries to equate one voice (for a complaint) with that of 50/100 legislators(RS or LS). Amidst other considerations, the Standing Committee believed that delegating the constitutional authority of removal of judges to a would-be statutory body is “ultra vires” to the Constitution. Chief among the objections is the fact that the NJC is composed solely of judicial members. The Standing Committee believed that an “Empowered Committee” of broader representation from the legislature and civil society, as the “second forum”, would do well. This would also, the Committee opined, lighten the load of dealing with frivolous complaints.

The Supreme Court had its own objections. Judges from the Supreme Court believed to be judged of misgivings, they need to be investigated only by their peer judges, thus eliminating the prospect of HC judges serving on the Council for cases against SC judges. Many judges have also expressed reservations of interference into the working of the NJC via the “Empowered Committee”.

Across the Horizon: From Appointment to Removal

Of all the issues that the Standing Committee report considers, one important recommendation was to make the expanded NJC the appointing authority of judges as well. More often than not, allegations on the effectiveness of the collegium system surface, and the Committee records the testimonies of former Chief Justices, including Justice R S Pathak, Justice Malimath, no less, who have believed that the overall quality of judges has diminished post 1993 – when by the Second Judges Case, the Supreme Court clarified that the President shall have no discretion to act on the recommendations of the CJI.

Beyond expanding the NJC to issues of appointment, it would be forthcoming to clear the hiccups in relegating each other’s turf – it is hard to stand by the Standing Committee’s argument of loss of control because of the introduction of complaint procedure: the reference procedure still stays. Similarly, it is a harder pill to swallow when the Law Commission and the Courts say that the NJC be composed solely of judicial members.

Truth be told, the proposed NJC is far from an ideal institution, which perfectly explains why the Bill has not seen sunlight. However, it would be erratic to presume the absence of an ideal institution for reform should tie us down to what we behold. If perfection is deceptive, failure to improve is deplorable.

By Shanmukha Aditya shanmukhaaditya2001@gmail.com

The featured image first appeared in The Guardian on 12th January 2018.

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