Author: Manoj Mitta
Publications: The Indian Express
Dated: October 4, 2001
During the 50 years since the Constitution
came into force, we have seen a lot of officers and ministers being thrown
out of their jobs on the charge of corruption or for misusing their powers.
But, oddly enough, during this entire period, there has not been a single
judge of any high court or the Supreme Court to have met such a fate. The
contrast suggests that somehow the members of the superior judiciary have
all been honest. This smug assumption about the Lordships has been shattered
by a consultation paper issued last week by the Constitution Review Commission.
It's the first-ever admission by
any authority that the judges get away with what the Constitution calls
"misbehaviour" because the expression has not been defined anywhere in
the statute. When there is an impeachment motion against a judge, it is
left entirely to the discretion of the MPs to decide whether a charge proved
against him constitutes misbehaviour. Not surprisingly, the only time the
stipulated 100 MPs of the Lok Sabha initiated an impeachment move against
a judge, V. Ramaswami of the Supreme Court, it proved abortive as the House
voted purely on partisan lines despite a clear finding of guilt by a statutory
committee of judges.
Inspired by the American system,
the Commission has suggested that bribery, misappropriation, commission
of serious crimes or crimes involving "moral turpitude" and acts of treason
may be treated as the misbehaviour forbidden by Article 124(4) of the Constitution.
The Commission is no doubt right in believing that once there is a statutory
definition for misbehaviour, it may become that much more practical to
impeach a judge. But it is still a long shot for somebody to establish
before the statutory committee that the judge is guilty of any of the grave
offences constituting misbehaviour.
The Commission therefore deserves
greater credit for acknowledging that the judges also need to be liable
for offences that may be considered too petty to fall under the definition
of misbehaviour. It has put on record the more commonly observed instances
that constitute "deviant behaviour not amounting to misbehaviour."
a.. Some judges do not come
to court at the appointed hour and do not sit till the hour they are supposed
to sit. They come at their own sweet will and rise whenever they want to.
They even keep away from court work without seeking leave.
b.. After the arguments are
over, the judges tend to reserve their judgments for years together and
leave the cases undisposed till their retirement.
c.. Cause-lists are manipulated
so that the heavy matters are scheduled to come up towards the end of the
day and their hearings, therefore, tend to be put off again and again.
d.. Though the allotment
of cases is the prerogative of the chief justice, some judges direct the
listing of "particular cases" before them without any reference to the
chief justice.
e.. Some judges, "with an
eye on populism," increase the work load of the courts and hurt public
interest by admitting almost all the cases and liberally granting interim
relief.
f.. Some judges compromise
"the image of neutrality" by not keeping distance from centres of political
powers.
None of the illustrations cited
by the Commission of the so-called deviant behaviour may come as a revelation
to the lawyers and litigants. But the acknowledgement of such offences,
that too by a panel headed by former Chief Justice of India M.N. Venkatachaliah,
who is widely regarded as one of the all-time greats, should come as a
wake-up call to the judges and all those concerned about the independence
of judiciary. Though India has produced judges known for their learning,
integrity and devotion to duty, the Commission said "there have been some
exceptions too and in the recent years more such exceptions are coming
to light."
Besides suggesting a definition
for misbehaviour, the Commission has come up with a way of dealing with
deviant behaviour not amounting to misbehaviour. It has proposed that the
statutory committee of judges, which is currently appointed only when there
is an impeachment move on the charge of misbehaviour, be converted into
a permanent body to deal with complaints of deviant behaviour of all kinds.
There is much merit in the proposal
that after the committee submits its inquiry report, the final decision
be left with the full body of the judges of the Supreme Court. If the charges
established are found to be serious enough to constitute misbehaviour,
then the full court will recommend to the President to remove the judge.
But if the charges established fall in the category of deviant behaviour
not amounting to misbehaviour, then the full court may administer a warning
to the judge or change the work allotted to him or transfer him to another
high court. Much as they are desirable, these judicial reforms will not
materialise unless the government musters the courage to take on the vested
interests dressed in black robes.