Please Ban This, By Law Or By Judicial Decree

This is an appeal for action in a situation of inaction in the matter of Justice P.D. Dinakaran. By now, the media has detailed several acts of apparent misconduct on part of the judge with enough authenticity and credibility. All his private gains have become public knowledge. The Forum for Judicial Accountability placed such material as it managed to acquire before the Chief Justice of India (CJI), who, after scrutiny, has referred the matter to the government. Justice Dinakaran is not going to be elevated to the Supreme Court. But is the government investigating the allegations? We do not know. The CJI could have handed over the complaint to the CBI, and, after investigation, if the allegations were prima facie found true and substantial, he could have sanctioned prosecution. Meanwhile, Justice Dinakaran sits in court with no restraint on him. If what has appeared in the press cannot be hidden from the public ear and eye, will the public have confidence in his administration of justice?
Ordinarily, when an inquiry takes place on any serious charge, particularly of corruption, against any officer or incumbent of any office, the person is first of all suspended and prevented from discharging official duties. In the case of judges of the higher courts, it should be more appropriate that they voluntarily abstain from work, particularly when a ‘scrutiny’ is on at the Supreme Court level. What is expected of a judge is stated in the Restatement of Values of Judicial Life (Code of Conduct), and one of the important “values” (16) reads thus: “Every judge must at all times be conscious that he is under public gaze and there should be no act or omission by him which is unbecoming of the high office he occupies, and the public esteem in which that office is held.”

It is true there is no provision in law or in the Constitution to suspend an errant judge from functioning during an inquiry. But that deficiency should not allow a judge to compromise on his conscience. In the past, when such aberrations arose, some attempts were made to ensure that the judge concerned stayed away from work. In the case of Justice V. Ramaswami of the Supreme Court, when inquiry proceedings under the Judges (Inquiry) Act, 1968, began, the then chief justice of India just declined to assign any judicial work to him. So also when the bar associations of the Bombay High Court called for the boycott of four judges (1990) on grounds of corruption, the then chief justice of the high court did not assign any judicial work to them, with no demur from the bar or the bench. Later on, two of these judges were transferred; one resigned, and the other, refusing to accept transfer, actually continued without any work for nearly four years, till retirement.

These salutary precedents seem to have been forgotten. The CJI recommends impeachment of a judge of the Calcutta High Court (Justice Soumitra Sen), and the judge refuses to resign. What’s more, the chief justice of the high court does not seem to have withdrawn any work from the impugned judge. The same is the case with other judges named in the Ghaziabad provident fund scam case.

In the case of Justice V. Ramaswami, 12 of the 14 charges were held proved. The charges, inter alia, related to criminal misappropriation, cheating and so on. No prosecution was ever launched against him, even after retirement. In the case of Chief Justice A.M. Bhattacharjee of the Bombay High Court, where the allegation was that he had received a disproportionately large sum of $80,000 in royalty from a suspect publisher in West Asia for the second edition of a book on Muslim Law and the Indian Constitution, the Supreme Court just declined to order any investigation or inquiry on those allegations. The court further said the constitutional provisions of impeachment “put the nail squarely on the projections, prosecutions or attempts by any forum or group of individuals or associations, statutory or otherwise, either to investigate or inquire into or discuss the conduct of a judge or the performance of his duties and on/off court behaviour”. Thus, the Supreme Court lost the opportunity to lay down guidelines in Justice Bhattacharjee’s case. The Supreme Court itself could have inquired into his conduct. It didn’t. It just closed its eyes, like the ostrich burying its head in the sand. So the same is likely to take place in the present case.

M.C. Setalvad, the first attorney-general of India, in his book, My Life, refers to the episode of the chief justice of the Patna High Court being accused of giving a false age at the time of his appointment and how P.B. Gajendragadkar, the then chief justice of India, persuaded him to resign without any investigation. Setalvad says: “The canker appears to have spread even in the highest judiciary...it is surprising that the persons in high places who have repeatedly, eloquently condemned corruption of all kinds on the public platform should be parties to draw a veil of silence and secrecy on the alleged corruption of the chief justice...(and) they seem to imagine that by avoiding...the allegation against the chief justice, they are saving the judiciary...from exposure; they forget that what they are trying to conceal is known to all lawyers and concerned citizens.”

So, our objective should be to devise appropriate mechanisms to weed out corruption without impairing the dignity and independence of the judges in any manner. A corrupt judge is not independent. Judicial independence is not only independence from the executive, but also independence from such human frailties as succumbing to acts of corruption and immorality.

It is, therefore, necessary to amend the Constitution to provide for the dismissal of at least such errant judges as have proven charges of corruption, bribery and such other acts of misconduct, which would fall beyond the ambit of appropriate judicial behaviour. There should be an independent complaint mechanism and an independent tribunal for investigation and appropriate action. In proper cases, there could be prosecution under the criminal law.

Our law minister has been saying no tainted judge will be allowed to continue. But so far, he has not quite spelled out the proposed law to bring that about. If one has to judge by what he did in the last Lok Sabha session, he seems to be suffering from the belief that the proposed law should in fact have the nod from the judiciary (“as you please, my Lord”). That’s the reason the UPA-I government could not bring in any appropriate law, either on the appointment or performance of the judges. The government must know that any consent from the judiciary, even if given, is no guarantee that the law would be later held constitutionally valid. It will have to be tested independently.

It is hoped that the government will appreciate the urgency of the situation in which the confidence of the public in the judiciary is fast eroding because of the presence of such errant judges. This should not be yet another missed opportunity. In any event, one must acknowledge that the situation being an extraordinary one, the Supreme Court (not necessarily the CJI) should suo motu consider an innovative approach of issuing an appropriate writ or order directing Justice Dinakaran to abstain from discharging his judicial functions. That may sound extraordinary, but it could prove necessary, not for the protection of the corrupt or dishonest, but for protecting the reputations of several other honest, conscientious and hard-working judges.

Finally, one must know that judicial integrity is not just a private virtue, but a public necessity. The situation demands action—not inaction.

(Hosbet Suresh)
(The writer is a former judge of the Bombay High Court.)

Justice V. Ramaswami

The committee, consisting of Mr. Justice P.B. Sawant of the Supreme Court, Mr. Justice P. D. Desai, Chief Justice of Bombay High Court, and Mr. O. Chinnappa Reddy, a jurist and former judge of the Supreme Court initially narrated the facts and the circumstances leading to the appointment of the committee. (These are being omitted because these are adequately covered in the other texts used in this book).

It went on to say that the 9th Lok Sabha was dissolved on 12-03-1991. Though the Lok Sabha was dissolved, the Speaker continued in office till the first meeting of the 10th Lok Sabha as contemplated by the second proviso to Article 94 of the Constitution.

A copy of the Notification constituting the Committee together with the Notice of Motion dated 27-02-1991 including the explanatory note regarding evidence on the charges against Mr. Justice V. Ramaswami and the announcement made by the Speaker in the Lok Sabha on 12-03-1991were communicated to the Presiding Officer of the Committee (Mr. Justice P.B. Sawant). A few days later a copy of the audit observations as formulated taking into account the comments given by Justice V. Ramaswami and copies of annexures to the explanatory note accompanying the Notice of Motion and some other material made available tot he speaker by the signatory members of the Lok Sabha at the time of giving Notice of Motion were also forwarded to the Presiding Officer.

No request of the President of India was conveyed either to Mr. justice P.B. Sawant or Chief Justice P. D. Desai, to function as Members of the Inquiry Committee. Such a request was thought to be necessary if the time spent by the two judges in the performance of the functions as Members of the committee was to be treated as ‘actual service’ within the meaning of paragraphs 11(b)(i) and 11(b) (ii) of part D of the Second Schedule of the Constitution of India read respectively with Section 2(b)(i) of the Supreme Court judges (Conditions of Service) Act and Section 2(c)(i) of the High (Page No. 189) Court judges (Conditions of Service) Act. On 16-04-1991 the Committee’s Secretary addressed the Department of Justice, among other things, for issuing Presidential Notifications to enable justice P.B. Sawant and Chief Justice P. D. Desai to function as members of the Committee. The Committee was scheduled to meet on 28-04-1991 to consider the situation arising from the want of a request by the President of Justice P.B. Sawant and Chief Justice P. D. Desai to function as Members of the Committee. On the evening of 25-04-1991 the Secretary General of the Lok Sabha forwarded to the Presiding officer a letter received from the Additional Secretary (Justice), Government of India, stating that Justice V.Ramaswami had made a representation to the President of India raising a fundamental question regarding the validity of the constitution of the inquiry Committee, stressing in particular that on the dissolution of Lok Sabha on 12-03-1991 the Motion had lapsed, and therefore, all other matters arising out of the Motion had also lapsed. The letter further stated that the Ministry of Law had obtained the opinion of the Attorney General who had said that consequent upon the dissolution of the Lok Sabha, the Motion had lapsed and the inquiry before the Committee could not container. The Ministry of Justice did not offer their opinion or advice in the matter but contented themselves by intimating the Attorney General’s view to the Secretary General of the Lok Sabha and the Secretary General of the Lok Sabha in turn merely forwarded the letter of the Ministry of Justice without indicating what further action was proposed by them in the matter.

At the initial stage, the Committee secured the services of Mr. F.S. Nariman, Senior Advocate, Supreme Court, to assist the Committee. Sub-sequentially, the services of Mr. Rajinder Singh, Senior Advocate and Mr. Raju Ramachandran, Advocate, were secured to assist the Committee in investigating the case.

A body styled as the Sub-Committee on Judicial Accountability filed Writ petition in the Supreme Court of India praying, inter alia, that the Union of India be directed to take immediate steps to aid the Inquiry Committee to discharge its functions under the judges (Inquiry) Act. they complained that the President had not issued the necessary Notification to treat the time spent by Justice P. B. Sawant and Chief Justice P. D. Desai as Members of the Committee as "actual service" within the meaning of the relevant provisions of the Constitution and the Supreme Court and the High Court judges (Condition of Service) Acts.

At its meeting held on 28-04-1991, the Committee considered the entire situation then obtaining and decided that for the time being they should not take any immediate steps to commence their work in view of the pendency of the case before the Supreme Court.

The Writ Petition filed by the Sub-Committee on Judicial Accountability (Writ Petition No. 491/91) was heard by the Supreme Court along with three other Petitions. A common judgement was pronounced by the Constitution Bench of the Supreme Court on 29-10-1991.

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Judicial corruption

SPEAKING IN Kerala, the Chief Justice, S. P. Bharucha, is reported to have reflected on the possibility of 20 per cent of judicial officials being corrupt, the existence of disciplinary control by the High Court over the lower judiciary and the absence of such an effective mechanism in respect of the High Courts and Supreme Court. These are the frank admissions of a concerned judge. The immediate response of the Bar Council of Delhi on February 16, 2002 was to canvass for a High Power Committee consisting of former Chief Justices and lawyers for an in-depth study to suggest measures. The docket of remedial suggestions is already overfull. Reports gather dust. Though intuitive, a 20 per cent corruption figure is enough to cause alarm. One in every five judges may be corrupt. Not all the time and not in all cases. The disciplinary record of the High Courts is reasonably good; but often questioned and questionable no less for being unfair. In the reported cases, both over-caution and over-zealousness are self-evident. We are still left with a problem of the higher judiciary. It is the judges who must make the proposals to resolve these lacunae.

The Constituent Assembly cannot really be blamed. No one had anticipated a problem of such dimensions. In fact, the Report of the Committee of the Supreme Court of May 21, 1947 concerned itself with the appointment and not the removal of judges. When, on July 29, 1947, A. K. Ayyar proposed the existing political model of parliamentary removal by impeachment, he had full faith in the "wisdom and sobriety" of future legislatures. He was wrong. M. A. Ayyangar rightly felt that he had to think "furiously" about a political model of removal which "we are not even prepared to follow... (for) ordinary civil servants". Gopalaswamy Ayyangar was convinced that such removals would be "... in rare contingencies and very probably... not used in his lifetime... (or the next generation". Practical issues — both of due process and efficiency were left in the air.

Between impeachment and the reproach of colleagues and public opinion, there is a shadow. There is nothing that can be done where a judge is seriously accused. There is no one to judge whether the accusations are serious. If serious, there is no procedure to deal with interim arrangements. In the Age Dispute Case (1965), Chief Justice Gajendragadkar felt that a "prudent and wise Chief Justice would naturally think of avoiding necessary complications by refusing to assign work to the sitting judge." As a convivial arrangement, this may work. But, what happens when the judge in question questions this procedure and complains that it means he had been tried by public opinion as seen through the eyes of the Chief Justice. Indeed, this is what appears to have happened in what is called the `Mukherjee' procedure. During the Justice V. Ramaswamy crisis, on July 20, 1990, Chief Justice Mukerjee asked Justice Ramaswamy to go leave whilst he investigated the matter to consider whether "it would be embarrassing for... (Justice Ramaswamy) to function as a judge." The Committee of three Supreme Court judges appointed to effect the investigation reported on November 6, 1999, that they were unable to come to a view about prima facie guilt and recommended that Justice Ramaswami could resume work — a view with which the succeeding Chief Justice (Ranganath Mishra) agreed. This was a difficult decision — and not unfair even though criticised by some of the indicating sections of the bar. In 1970, Justice Douglas of the U.S. Supreme Court thought that denial of work was possibly worse than impeachment — since it established guilt without effective due process.

The proposals for reform have been super abundant. The famous 14th Report of the Law Commission (1958) did not examine the issues. Following the suppression crisis of 1973 a collegium for appointments was moored at the famous Ashoka Hotel meeting of August 11-12, 1973. It was again made in the Bombay Memorandum in the appointments controversy of 1978 and blessed in part as an idea in the First, Second and Third Judges cases (1982, 1994 and 1998) whereby a Judicial Collegium was invented for the purpose of appointment and has worked in ways that have not escaped criticism and reproach. But, the issue of a National Judicial Commission for removal of judges has gathered momentum slowly — mostly after the failure of the Justice Ramaswami impeachment although Justice Desai's Law Commission made some proposals in its 121st Report (1986). But despite many suggestions and Bills, this issue stands stagnantly neglected.

But, the problem is not just a question of devising proposals for removal. The Judges (Inquiry) Act, 1968, prefaces impeachment by judicial inquiry. In Justice Ramaswamy's case inquiry indicted whilst Parliament absolved the judge. As far as removal is concerned, the question is whether there should be a political (parliamentary) add-on after a high level judicial inquiry is over. There will be limited judicial review of the inquiry proceedings. But, no appeal — which leaves the judges worse off than most civil servants. If the political element in the removal process is to be abandoned by institutional amendment, a rigorous due process must be set in place which will deal also with the questions of interim arrangements on whether the judge be assigned work.

But, removal is the ultimate procedure. What about day-to-day complaints both in relation to (a) unbecoming conduct by the judge and (b) complaints about behaviour graft and corruption. America's constitutional removal procedure was supplemented by legislation in 1939 and again 1980. These are matters that require immediate attention in India both for the higher judiciary (that has no effective procedure) and for the lower judiciary (which has a faulty procedure). The High Court procedure for the district judges falls precisely because it is ad hoc and lacks rigour.

Matters concerning the judiciary lie hidden — often, for fear of contempt of court. In the Ravichandran case (1995), a somewhat wide statement was made by the Supreme Court that "(no one) can question conduct of judges save by the procedure laid out in the Constitution i.e. tribunal or Parliament". In this case, a new procedure was suggested for resolving complaints through the aegis of the Chief Justice of India who has admittedly no power other than the status and prestige of his office. Today the most credible parts of the Indian Constitution are the people acting as an electorate and the Judiciary which straight-jackets governance within the discipline of the rule of law. But, if the Judiciary congeals a substantial measure of corruption, the Constitution and our democracy are in peril. An immediate planned response in needed to examine issues of corruption to devise effective complaint mechanisms for the Judiciary. This is more important than the many politically motivated constitutional amendments considered by Parliament.

(Rajeev Dhavan)