Headline : What happens when judges face allegations?
- The Supreme Court committee appointed for looking into the allegations of sexual harassment made by a former SC employee against the Chief Justice of India will begin its inquiry on 26th April, 2019.
Background of the case
- A former employee of Supreme Court made allegations of sexual harassment against the sitting Chief Justice of India, Ranjan Gogoi, which the CJI denied.
- After the allegations were made, a committee comprising three Justices was made to inquire into the allegations.
- A lawyer claimed that there is conspiracy involved in this case, as he was offered Rs 1.5 crore to “frame” the CJI.
- Moreover, the complainant has sought safeguards like video recording, and an inquiry by six retired judges of the Supreme Court.
- The inquiry by the committee is supposed to start on 26th April, 2019.
- If allegations of corruption or sexual harassment are proved it would amount to misbehaviour or misconduct.
Questions raised in the situation
- What should be the extent of protection required by judges against motivated accusations? And who will decide it?
- If judiciary itself is alleged of such crimes, is it possible to get an expeditious, thorough, fair and impartial probe?
- Despite that several judges have faced allegations of corruption and even sexual misconduct yet no judge has been removed so far. Is there a mechanism to fix judicial accountability?
Understanding the process of fixing judicial accountability
- Our constitution protects judges against the will of the masses, of Parliament, and of the all-powerful executive, which is called as judicial independence.
- However, the constitution also provides for removal of judges.
- Ground of removal: Proved misbehaviour or incapacity.
- Process of removal: Impeachment
- A judge of the Supreme Court can be removed from his Office by an order of thepresident.
- The President can issue the removal order only after an address by Parliament has beenpresented to him in the same session for such removal.
- The address must be supported by a specialmajority of each House of Parliament (ie, a majority of the total membership of that House and amajority of not less than two-thirds of the members of that House present and voting).
- India does not currently have a statutory mechanism other than impeachment to examine the misconduct of judges.
- Impeachment also is a complex and a political process; hence it becomes difficult to hold judges accountable.
Definition of “Misbehaviour or Incapacity”
- The Constitution, which provides these two grounds for removal of judges, does not defines ‘misbehaviour’ and ‘incapacity’.
- The Judges (Inquiry) Bill, 2006, defined ‘misbehaviour’ and ‘incapacity’ as-
- A “wilful or persistent conduct which brings dishonour or disrepute to the judiciary or
- A wilful or persistent failure to perform the duties of a judge or
- A wilful abuse of judicial office, corruption, lack of integrity or
- Committing an offence involving moral turpitude.
- The Judicial Standards and Accountability Bill, 2010, widened the definition of ‘misbehaviour’ by including-
- Corruption or lack of integrity which includes delivering judgments for collateral or extraneous reasons.
- Making demands for consideration in cash or kind, or
- Any other action, which has the effect of subverting the administration of justice.
- Failure to declare assets and liabilities.
- Willfully giving false information.
- According to citing in C Ravichandran Iyervs Justice A M Bhattacharjee & Ors (1995), case-
- If the conduct of a judge leads to the credibility of the judiciary being called into question, it should be considered misbehaviour.
- Misconduct prior to assuming office is not exempted.
Non-constitutional provisions of inquiring various allegations against Judges
In sexual harassment cases
- In 2013, the Parliament enacted The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.
- Under this act, every institution that has more than 10 employees must have an Internal Complaints Committee (ICC), according to which the Supreme Court also has an Internal Complaints Committee headed by a woman judge.
- According to procedures laid down by this committee-
- It deals with complaints of sexual harassment on the premises of the court.
- However, it has no power to deal with complaints against the CJI or judges.
- Against judges, the in-house process can be initiated only by the CJI.
- Whereas if the allegation is against the CJI himself, the procedures are silent.
In corruption cases
- According to the rulings in K Veeraswami vs Union Of India And Others (1991)-
- If there is an allegation of corruption against a judge of the Supreme Court, the President would order an investigation in consultation with the CJI.
- If the allegation is against the CJI himself, the President would consult other judges and act on their advice.
- Although this ruling was only about allegations of corruption, but it is being followed for all allegations against judges.
Understanding the need of Judicial Accountability
- For democracy: Unscrutinised judiciary would demean the democracy and constitutionalism because-
- Liberty without accountability is freedom of the fool and Power without responsibility is the anti-thesis of constitutionalism.
- Accountability of the authorities is the very essence of a mature democracy.
- Values: Judicial accountability promotes at least three discrete values:
- The rule of law.
- Public confidence in the judiciary.
- Institutional responsibility.
- Constitutionalism: Independence of the judiciary, a part of the basic structure of the Constitution is not an end in itself but it has instrumental role in serving the objectives of constitution.
- Efficiency and Effectiveness: Judicial accountability will make the exercise of their power more efficient and effective.
- Rule of law: No one is above the law, whatever be his rank or condition and equality before law is the cardinal principle of the rule of law, and hence it must be respected.