Code of Conduct
By Sanjay Raman Sinha
The recent statement of the Enforcement Directorate in the Supreme Court implicating a Chhattisgarh High Court judge in helping an accused in the multi-crore public distribution scam is a shocker. Solicitor General Tushar Mehta told the Court that WhatsApp chats revealed connivance between accused IAS officers and those holding constitutional posts.
The connotations are grave and have rekindled the spectre of judges’ impeachment for misdemeanour. In India, this is not the first time aspersions have been cast on a judge. While no judge has faced impeachment, many have had charges of corruption or sexual harassment levelled against them.
In the US too after the unpopular judicial decision to overturn Roe vs Wade verdict (that guaranteed abortion rights across the US), protestors demanded that the federal government take action against those judges whom they claimed had not been honest with the American people.
The law demands judicial accountability. This is necessary to maintain public trust in the judiciary and for ensuring judicial integrity. As the saying goes, Caeser’s wife should be above suspicion.
The impeachment process is quite complex and many argue that this is rightly so to maintain the independence of the judiciary. The procedure for removal of judges is contained in Article 124(4) of the Constitution, which says that a judge of the Supreme Court shall not be removed from his office except by an order of the president passed after an address supported by not less than two-thirds of the members present and voting has been presented to the president by both Houses of Parliament in the same session….
In K Veeraswami vs Union Of India And Others (1991), the Supreme Court ruled that in case of an allegation of corruption against a judge of the Supreme Court, the president would order an investigation in consultation with the chief justice of India (CJI). If the allegation is against the CJI himself, the president would consult other judges and act on their advice. Such removal can be initiated on the ground of proved misbehaviour or incapacity. However, the Constitution does not define “misbehaviour” or “incapacity”.
The Law Commission in its 195th report had extensively dealt with the subject with reference to the proposed Draft of Judges (Inquiry) Bill. The Judges (Inquiry) Bill, 2006, sought to establish a National Judicial Council to inquire into allegations of incapacity or misbehaviour of judges of the Supreme Court and High Courts.
Further, the Judicial Standards and Accountability Bill, 2010, tried to lay down enforceable standards of conduct for judges. It proposed to widen the definition of “misbehaviour” by adding “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”.
Presenting the Draft Bill of 2005, the Law Commission had proposed that “complaint procedure” be introduced in addition to the earlier “reference procedure”. In a “complaint procedure”, a complaint can be made by any person to the Judicial Council against judges of the Supreme Court (except the CJI) and chief justices and judges of High Courts.
In the “reference procedure”, if there is a Motion by MPs in either House, the Speaker/Chairman can make a reference to the Judicial Council for inquiry not only against the judges, but also against the CJI. However, there is provision for preliminary scrutiny and verification.
“Minor measures” were also advocated in the Report of 2001 by the National Commission for Review of the Constitution headed by former CJI Justice MN Venkatachaliah. The Law Commission recommended that there should be a provision investing the Judicial Council with power to itself to impose minor measures where the proved misbehaviour or incapacity does not warrant removal. Such minor measures would include (i) issuing advisories, (ii) request for retirement, (iii) stoppage of assignment of judicial work for a limited time (iv) warning and (v) censure or admonition (public or private).
Of course, in the case of a reference by the Speaker/Chairman on a Motion for removal, the Judicial Council cannot impose or recommend any “minor measures”.
The Law Commission had recommended that the Judicial Council, when it investigates allegations against a Supreme Court judge or against the CJI, should not include the two seniormost chief justices of High Courts. In such an event, the Judicial Council should comprise the CJI and four seniormost judges of the Supreme Court.
The Law Commission held that investigation by the Judicial Council by way of a complaint procedure in addition to a reference procedure is not an infringement of the Parliamentary process contained in Article 124(4)
Going by the cases of “judges’ missteps”, a code of conduct for judges is desirable. Most of the judiciaries in several countries have such codes. Breach of the code of conduct can be treated as “misbehaviour”. Then depending on the severity of misbehaviour, minor measures could be invoked.
At a time when the judiciary is fiercely fighting to protect its turf and independence, an internal model to guide judges’ behaviour can be a welcome step.