JUDGING OUR JUDGES
It would be myopic to place judicial performance beyond scrutiny as liberty without accountability is freedom for the foolish. Power without responsibility is the antithesis of constitutionalism. Yet no judge has so far been impeached in India. In 2010, senior lawyer and former law minister Shanti Bhushan asserted, in an affidavit in the Supreme Court, that out of 16 chief justices of India, as many as eight were ‘definitely corrupt’. There was a move to impeach CJI M.M. Punchhi for acquitting a person on the basis of a compromise in a matter of criminal breach of trust—which is a non-compoundable offence—for allegedly extraneous considerations, but the requisite number of MP signatures could not be procured for the impeachment motion. Last year, CJI J.S. Khehar too was mired in a controversy over the suicide note of former Arunachal Pradesh chief minister Kalikho Pul. Justice Markandey Katju too had made serious allegations about the extension given to a Madras High Court judge by three CJIs under political pressure from the DMK and UPA. The ill-conceived, half-hearted and unrealistic move to impeach CJI Dipak Misra on charges that are hard to prove should cue attempts to put in place a system of judicial accountability short of impeachment. A judge can be impeached by Parliament on grounds of ‘proved misbehaviour or incapacity’. Judges hold office, not only in India but also in, say, Britain and the US, during what may be termed as ‘good behaviour’ periods. The CJI too can be impeached like any other judge as he is simply the first among equals. The Supreme Court itself has held that ‘misconduct’ is a relative term that could
connote “wrong conduct or improper conduct”. The Judges (Inquiry) Bill, 2006, did include wilful, persistent failure to perform duties within the definition of ‘misconduct’, but it is difficult to argue that writing of fewer judgments or wrong judgments amounts to ‘misconduct’ or ‘incapacity’.
Public perception matters in the discharge of judicial functions. If there is even a baseless perception that the CJI and/ or other judges are under the influence of the government and matters in which the government is interested are given to pliant benches, it may be a worrisome sign for the independence of the judiciary. However, none of this, including the controversial constitution of a seven- and then five-judge bench with great alacrity to overturn a decision of a three-judge bench in the Lucknow medical college case, may really meet the stringent criteria of ‘misconduct’.
Corruption is a cognisable offence, yet in the Justice K. Veeraswami case (1991), the apex court laid down that no FIR can be filed against a judge without the permission of the CJI. Although the case was about corruption, the Supreme Court extended protection to all cases. If the allegation of corruption is against a Supreme Court judge, the President could order an investigation in consultation with the CJI. If the allegation was against the CJI, the President had to consult other judges and act on their advice. In CJI Khehar’s case, since the allegations were not only against him but also against the then President (Pranab Mukherjee), Khehar rightly ordered that the matter be referred to an appropriate bench.
The impeachment process is so time-consuming and tortuous that it practically gives judges immunity. We, therefore, must evolve other mechanisms to evaluate the performance of judges. Judicial accountability promotes at least three discrete values: the rule of law, public confidence in the judiciary, and institutional responsibility. Many US states have a ‘merit plan’ to evaluate judicial performance. States such as Arizona, California and Utah have Judicial Performance Review Commissions/ Councils. These consist of not only judges and lawyers but also laypersons. New York and Alaska have systems of evaluation by trained court observers who make unscheduled court visits. Judges are evaluated on their knowledge of law, integrity, sentencing, impartiality etc. Judges must be judged too, and we need mechanisms that enable this.
The impeachment process is so tortuous that it practically gives judges immunity