Don’t judge the judge

Independence of the judiciary means independence from the executive and legislature, but not independence from accountability

Prashant Bhushan Delhi

The recent decision of the government to bring a bill to amend the Judges Inquiry Act and provide for the constitution of a National Judicial Council to inquire into complaints against errant judges is being perceived as a long awaited initiative to introduce some accountability for judges of the higher judiciary. But on examining its provisions in the light of past experience we will see that it is designed more to create an illusion of accountability, while in practice it will hardly change the existing position.

There has been growing realisation over the past many years that the system of impeachment created by the Constitution for dealing with judicial misbehaviour is impractical and unworkable. This is partly because, to set the process in motion, one needs to get an impeachment motion signed by 100 MPs, an impossible task, unless one already has unimpeachable documentary evidence to prove the guilt of the judge. In most cases, that is not possible unless some investigation body investigates the charges and collects evidence.

In Justice V Ramaswami’s case, it was possible to do that since the charges pertained to purchases made for the Madras High Court and his official residence and were audited by the accountant general’s office, the audit report of which contained the evidence necessary to frame the charges. He was then tried by a committee of three judges, appointed by the Lok Sabha Speaker, which found him guilty on many charges of misfeasance. Despite this, he escaped removal because the then ruling party decided to abstain from voting on his impeachment motion.

The problem of judicial accountability has been compounded by the Supreme Court’s judgement in Veeraswami case, in which it declared that no judge of the High Court or Supreme Court could even be subject to investigation in any criminal offence of corruption or otherwise, unless one obtains prior written consent of the chief justice of India. This has resulted in a situation whereby no sitting judge has been subject to even investigation in the last 15 years since that judgement, despite public knowledge and complaints of widespread corruption in the judiciary. The police does not dare approach the chief justice for permission to investigate, unless they already have clinching evidence, which they just can’t document unless they investigate. It is a classic case of a catch 22 situation and the judiciary seems reasonably content with the paradox.

Further, the judiciary is insulated from public criticism by the threat of ‘Contempt of Court’, which can be used in a draconian manner by the very judges towards whom the criticism is directed, as we saw in the Arundhati Roy case. The sword of ‘contempt’ has kept the judiciary away from critical public scrutiny, particularly within the mainstream media. The judiciary is obviously happy to live with this situation as well.

The judiciary seems to be effectively seeking to remove itself from the purview of the Right to Information Act. The Supreme Court has recommended amending the Act to remove the jurisdiction of the Central Information Commission over it under the Act, and further, that any information interdicted by the chief justice on the ground of independence of the judiciary will not be given. As if mere transparency in the functioning of the judiciary can compromise its independence!