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.