Selection and Impeachment of Judges

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Economic and Political Weekly December 4, 2004 5221

Perspectives

Selection and Impeachment

of JudgesIssues for Debate

The constituent assembly did not make any effort to provideguidelines for appointing as judges persons who would beequipped to discharge constitutional obligations. Being alawyer is not a sufficient qualification to be a judge. Being alawyer with a large clientele may also not fit the bill. It calls for aphilosophical understanding of what the Constitution is allabout. A commitment to bring about transformation of society interms of the Constitution by using their adjudicating andinterpretative skills is called for.

are told that the justice system, as delin-eated in our Constitution, is the index ofdemocratic governance.

After we attained independence we wereleft with an administration trained toadminister colonial interests and a judi-ciary trained to protect colonial rule againstpopular struggles with special laws tocontain popular protests and revolts. Thestructure of the high courts and theSupreme Court are testimony to this legacy.In fact, as late as 1964 (re-affirmed in1986), the Supreme Court opined thatnothing changed after the Constitutioncame into force on January 26, 1950.No new institution was created to heraldthe change. But we did make some changeswith reference to the judiciary. Althoughwe did not adopt the theory of separationof powers fully, the view was that weshould have an independent judiciary to

prevent arbitrary law-making by the legis-lature and arbitrary exercise of power ingovernance. They were designed to be thesentinel on the qui vive and protect therights of the citizens guaranteed in Part IIIof the Constitution. In practice, however,they were partial to protection of propertyand biased against personal liberty of thepeople (confirming and imposing re-straints on personal liberty) by parliament.Be that as it may, it was during the periodswhen the executive introduced laws toabridge property rights on the one hand

and imposed restraints on liberty on theother, that a major debate took place onthe independence of the judiciary.1

What was achieved was independenceof the judiciary sans the vision required,leading to an erosion of purpose andphilosophy in the judiciary. The problemis not one of executive interference in theappointment but the choice of personswith intellectual capabilities to understandthe constitutional scheme, the goals, anenthusiasm to mould the law, and interpretit in a manner that would secure theobjectives set out in the Preamble to theConstitution, in the process evolving ajurisprudence that will be able to resolveour own constitutional dilemmas. Courtswere never intended to be committed tomaintain the status quo. And Indira Gandhiwas not the first leader of a governmentto introduce the concept of committedjudiciary.

Devoid of Vision

Judges in an institution devoid of visionare committed to maintaining the statusquo. This state of affairs has more or lesscome to stay whereby the court staffingpattern ensures that it shall play no role

in the countrys affairs in terms of theConstitution. It is this commitment to onesown career that has been continuouslyeroding the value system in our society.The aberration of the Best Bakery trial,and the use of the administration of justiceas a doormat as the Tamil Nadu chiefminister had done are all manifestationsof this erosion. Every retiring chief justicecries about the enveloping corruption inthe judiciary. And yet while in tenure, notonly do they not do anything, they do noteven suggest steps to cleanse the Augean

stables. The profession with its valueneutral stance, and the consequent tunnelvision enables its members to enjoy theindependence it assures without the atten-dant responsibilities of practising theprofession diligently. Not being saddledwith institutional responsibilities or aprofessional vision committed to constitu-tional morality, the profession continuesto be the only institution which has thelicence to be amoral in practising its calling.In such situations the aggrandisement bythe professional leaders and corruption in

K G KANNABIRAN

How should we appoint our judgesand how should they be removedfrom office? It is widely believed

that the answer to these twin questions iscrucial for assessing the character of thesuperior judiciary in the country. Peoplein general know less about courts, thejudges who are appointed to this hier-archical structure called the justice sys-tem, the way the system operates or themethod or content of judges functionsthan they know about the working of thelegislative assemblies, or the parliamentand the members elected to those bodies.

After the recognition of the right to voteas a fundamental right we have come toknow more about our representatives andalso about the aspirants. This transparencyhas enlarged the content of our demo-

cracy. Where the judiciary is concerned,at the lower level, up to the level of districtjudges, there is some understanding oftheir uses to the people and generally abouttheir jurisdiction to try offenders. As wego up the hierarchy of courts, mysteryshrouds appointments, the powers of theappointees and their activity. Yet, it is thehigh court and the Supreme Court that arealways debated about during periods ofcrisis internal or external and whenthe executive puts the fundamental free-doms in jeopardy. During such periods we


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the decision-making process appear to beinevitable. Personal corruption interfereswith the decision-making process, thus themuch talked-about independence getseroded much faster than it is realised. Andthat is why the method and manner ofstaffing the judiciary at every levelassumes importance.

Article 124 (2) of the Constitution deals

with the appointment of the judges of theSupreme Court and Article 217 (1) dealswith the appointment of judges to the highcourts. And all that is said is that thepresident shall appoint these judges. Thejudges of the Supreme Court are to beappointed after consultation with such ofthe judges of the Supreme Court and thejudges of the high courts in the state asthe president may deem necessary. Thechief justice shall always be consulted inthe case of a judge other than the chiefjustice. A judge to the high court shall be

appointed after consultation with the chiefjustice of India, the governor of the stateand in the case of appointment of a judgeother than the chief justice, the chief justiceof the state high court. Nowhere is therequired intellectual calibre or the intelle-ctual standing necessary stipulated formaking the recommendation. The debatesalso do not mention anywhere the qualitiesand capabilities required for an advocateto be appointed as a judge. A judge eitherto the high court or the Supreme Court,undoubtedly a constitutional appointment,

has enormous powers that can be un-critically exercised and the interpretiveauthority entrusted to them has destructivepotentialities. E Cahn points out that thebest and worst propositions of social ethics,politics and law will not preserve us if menwho apply them are themselves philistinesand mediocrities, even affable mediocri-ties. Nothing earthly can preserve uswithout sharply improved human qualitiesof leadership and citizenship.2 RalfDahrendorf is yet another who stressed theimportance of the personal qualities of the

incumbents in enhancing the prestige ofinstitutions. It is very often said that a fewstray sheep cannot unmake an institution.It is not realised it is the silent sheep thatunmake an institution.

After so many years of almost inaudiblecriticism about the conduct of judges, in1992 a resolution was passed in the chiefjustices conference held at New Delhi onSeptember 18 and 19 where it was re-solved to restate the pre-existing anduniversally accepted norms, guidelines andconventions, reflecting the high values of

judicial life to be followed. A committeewas appointed by the CJI to submit a draftof the restatement of values that shouldguide their conduct whether in office orin their personal lives. The draft came upfor consideration and was approved by thefull court of the Supreme Court and aresolution was passed, adopting theRestatement as binding on the judges.

The Restatement empowers the CJIto take action against errant judges forviolating its provisions. It reads:

The judges of the high court should make

a declaration to the chief justice of their

high court, assets standing in their names,standing in the names of their spouses and

other dependents. The chief justice shall

file a similar declaration for purposes of

records. The declarations so made are

treated as confidential.

No judge shall contest for any position ina club or any other association. He can,

however stand for an elective post in anyassociation or society connected with law.

[No judge shall have] close association

with members of the Bar, particularly who

practice in the same court.No member of his family whether a spouse

son/s sons-in-law or other close relative-

being in the profession should appear before

him or in the court presided over by him

or be associated with a case to be dealt

with him.No judge should deal with a case in which

his family or a close relation is interested

or concerned.

A judge shall not enter into a public debateor express his views in public on political

matters or on matters pending or likely to

arise for judicial determination.

A judge should allow his judgments to

speak for themselves, and he shall not

campaign their correctness in the media

electronic or otherwise. He shall avoid

media interviews.

A judge shall not accept hospitality or gifts

excepting from his family, close relations

and friends.He shall not hear and decide cases of a

company in which he holds shares unless

he discloses his interest and if no objection

is raised he can proceed to decide the matter.

A judge shall not speculate in shares and

stocks.A judge shall not engage in any trade or

business either by himself or with any

other person.

A judge shall not indulge in any activity

of fund-raising for any purpose and this

will include his accepting contributions.A judge shall not seek any financial benefit

in the form of a perquisite or privilegeattached to his office unless it is clearly

available. In case of doubt the CJ has to

clarify.

A judge should be conscious that he is

constantly working under public gaze and

he shall not commit any acts of omission

or commission unbecoming of the high

office he is holding and the public esteem

in which it is held. That was why he is

advised to practice a degree of aloofness

consistent with the dignity of office.3

These have remained mere moral apho-

risms to which few may pay lip-service.A soliloquy of the CJI! A CJ of the high

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court is not superior to the puisne judge.He is only a first among equals. Theostensible subservience one witnesses isa way of getting on in life. The high courtis not administratively subordinate to theSupreme Court. The ostensible subordi-nation one witnesses is for reasons of ex-pediency. Such relationships were broughtinto existence in the belief that, holding

such high constitutional appointments theincumbents will acquit themselves withresponsibility. The Restatement of Judi-cial Values is itself a recognitionof dete-riorating standards.

Thomas Jefferson complained about theFederalists in a letter by a fraudulent useof the Constitution, which has made thejudges irremovable, they multiplied use-less judges merely to strengthen theirphalanx.4 Jefferson was carrying on adebate with his adversaries. We are inmuch the same position though adversarial

politics has nothing to with the deterior-ation. It is about the staffing pattern by thesuperior judiciary in the high courts andthe Supreme Court. It is about indepen-dence of the judiciary in the real senseand not in the formal sense. Independenceof the judiciary has been reduced to afetish and guarding this independence inthe outer ramparts is the contempt powerof the court, often quite arbitrarily exer-cised. The Second Judges Case,5 wherenine judges sat and liberated the courtfrom the trammels of the executive has

no mechanism to appoint persons tojudgeships of persons who have anunderstanding of the constitutional visionand philosophy. That, I believe, is theminimum requirement.

A New Strugglefor Independence

The earlier struggle for independence ofthe judiciary was avowedly for protectingproperty and business interests. There isa necessity to start a struggle for indepen-

dence of the judiciary to protect the right tolife of the poor, the socially and economi-cally deprived, and the underprivilegedand when this happens the institution canbe said to be democratic. As it is structuredit is the inheritor of the colonial tradition,super imposed by upper caste dominantculture. That the personal element of thepersons chosen has not been discussed andconsidered in the famous Second Judgescase which appropriated all the powersinterpretively cannot be disputed. In thiscase they say that the executive in one form

or the other is the single largest litigantbefore the courts, and in this view of thematter, the judiciary is the principal me-diating factor between the people and theexecutive. The dispute in this case is onaccount of a crisis in the relationshipbetween the executive and the judiciary.There was no imminent erosion or at-tempted erosion of the independence of

the judiciary. It was by way of abundantcaution that the decision was rendered.They say that the CJI is the pater familiasof the Indian judiciary. In another case theSupreme Court was likened to the Vaticanand the CJI to the Pope. And he is theperson who guards the integrity and inde-pendence of the institution. And in thatcapacity he evaluates the merit of thecandidates with regard to his and (occa-sionally appointed) her legal ability, etc,and offers his opinion. There is no neces-sity to question his opinion or whet his

recommendation by any other person orauthority, for such a procedure interfereswith the independence of the judiciary.This reasoning proceeds on the basis thatthe chief justice of the high court and theCJI have the wherewithal to know andassess the worth of the candidates and theirsuitability to hold the position of judgesin the high courts as also the SupremeCourt. All this exercise is meant to do isto eliminate political influence, which maysully the independence of the judiciary atthe very threshold.

In this approach they assumed they aloneare competent to talk about independenceof the judiciary and how to bring aboutsuch independence and prevent its ero-sion. They therefore presume they aloneknow how to pick up the qualified amongthe lawyers to be appointed as judges.They were for a long time under themistaken impression that the executivealone is interested in destroying the in-dependence of the judiciary. They have notyet recognised the erosion of indepen-dence wrought by litigants by playing upon

caste and religious sentiments. Downrightcorruption, making dispensation ofjustice a marketable commodity, is also athreat to the independence of these insti-tutions. These reasons have made Rule ofLaw a fugitive which, with the kind inter-vention the Supreme Court has had tomake, had to take shelter in neighbouringstate courts.

The system, as it existed, was of elevat-ing persons to the high court on the basisof impressions of the high court judgesabout lawyers practising in their courts

and/or on the basis of the ruling partysselection of lawyers for elevation and veryoften this practice resembled some barterlike transaction between the executive andthe judiciary. The ruling partys nomineewas also elevated along with the judgeschoice for elevation. This exercise inconsensus worked until Indira Gandhiwanted a loaded judiciary. The smooth

working of the mechanism was rupturedbecause of the executive insisting on itscandidate or a stubborn judge refusingto yield to the machinations of the exe-cutive. This is because from the begin-ning there was no transparency in selec-ting persons for elevation, and themanner in which judges were elevatedwas never democratic. The method ofappointing judges was quite arbitraryand was entrusted to a small oligarchy.The president consults the CJI and theCJ of the high court for appointment

to the high court and elevation to theSupreme Court.

The constituent assembly did not pro-vide guidelines for appointing as judgespersons equipped to discharge consti-tutional obligations. Being a lawyer is nota sufficient qualification to be a judge.Being a lawyer with a large clientele mayalso not fit the bill. It also calls for aphilosophical understanding of what theConstitution is all about. A commitmentto bring about transformation of the so-ciety in terms of the Constitution by using

adjudicating and interpretative skills iscalled for. The other person who dealswith the personal requirement of the per-sons who staff these institutions is RalphDahrendorf.6According to him, and rightlyso, institution-building requires primaryattention in democracies. While demo-cratisation may lead to extensive parti-cipation, this itself creates its veto groupand to make this democratisation mean-ingful there is a necessity for restructuringthe institutions of democracy. Where insti-tutions are staffed by the elective process

they can be reformed by the process ofelection or by subsequent legislation. Therestructuring of other constitutional ap-pointees like the judges and courts is verycumbersome and very often unyielding tosense, unwilling to give up their feudaltrappings and, in India, the opaque waysof functioning inherited from the British.The opaqueness of the British method ofappointment was because they had noobligation to share with the subjects theprocess of staffing these institutions, infact any institution. But that process ill fits


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a democracy consisting of several croresof citizens with fundamental rights,including the fundamental right to vote.That is why Dahrendorf says that insti-tution-building should begin with first prin-ciples: Democracy is about seekingprogress in a world of uncertainty. Its Con-stitution must make change possible, butmove it away from the arbitrary acts of the

few. This means it must create conditionsfor initiative but also for control and bothmust be related to the rights and interestsof the citizens.

After liberating them from the regu-lation of authoritarian interference andcontrol, the real issue remains as to howone encourages initiatives and retainscontrol in the functioning of these insti-tutions. Lack of norms at the time of entryadmits people who have never even paidlip-service to norms that have been stipu-lated or implied. There are people admitted

to these institutions who feel that their ideaof what is good for the people, withoutreference to constitutional values and lawspassed in furtherance of those values, maynot yield to the collective wisdom reflectedin the Constitution. Thus one will find theenervation of the Constitution, while inter-preting laws pertaining to violence onwomen, the laws pertaining to dalits, orthe interpretation of liberty in the succe-eding decades after Gopalan, the BestBakery case in the high court and later inthe Supreme Court, the corruption charges

against Jayalalithaa. Part of this im-potence is manifested in the failure toinnovate reliefs to assure people that ruleof law and democracy will stay and thatchief ministers will be the fugitives andnot the rule of law.

And what shall we do with the errantjudges? Th is ques tion remains un-answered. The institution is avoidingfacing the issue on a very misleadingpremise that debating these issues mightbring down the prestige this institutionenjoys and disable it from a proper dis-

charge of its constitutional obligations.An elected appointee is only removablefrom office by impeachment as providedin Article 124 (4) of the Constitution. Ajudge who is charged with misbehaviourhas to be arraigned in each house ofparliament by an address in each houseand the voting for removal is cumbersomeensuring failure of voting recess. Whileparliament sits as the high court againstthese high constitutional appointees, itsdecision is partisan, the party whipcontrolling the result.

Impeachment

We have witnessed this spectacle in thecourse of the impeachment of the TamilNadu judge Ramaswamy. There is, in thecase of a whip, only a collective decisionwithout either a collective or individualapplication of mind to the issue of mis-behaviour of the judge in the dock. This

arraignment before parliament has to bepreceded by an investigation in accordancewith the provisions set out in the Judges(Inquiry) Act 1968. The proposal shouldhave the support of the majority of thehouse with two-thirds majority in eachhouse present and voting. As a judge canbe tried for misbehaviour his tenure canonly be a tenure on good behaviour. Itcannot be anything else. Unfortunately,the cumbersome disciplinary proceedingcan only be on proven misbehaviour. Thisis too comprehensive an expression and

when undefined it gives licence to regularmisbehaviour of various grades leading toan erosion of norms rendering the insti-tution useless for constitutional purposes.Tenure to last till the persons reach the ageof superannuation is subject to goodbehaviour. The misbehaviour results intermination of the office. The judges arenot even aware that their term is not socompletely protected as they imagine. Theyshould realise that it is not the cumbersomeprocedure for their impeachment thatprotects their tenure. Their tenure is condi-

tional upon good behaviour, irrespectiveof the age of their superannuation. Thefirst time the attempt at impeachment failedbecause parliament did not function as thehigh court of parliament. Issuing a whipto control the voting in impeachment is aninjudicious and arbitrary exercise of powerby a body, which claims to run a demo-cracy. The second time such an approachto judicial proceedings of the parliamentmay not succeed because there is, I believe,a mood to restructure institutions. How tocontrol, short of impeachment, the ever-

increasing misbehaviour?The only way out found by the Supreme

Court was to transfer undesirable judgesfrom one high court to another, takingcare to inform the public that there is nostigma attached to these transfers. Evencampaigning for impeachment to securethe 100 signatures of the representativesof the people can be viewed as contempt.The strategy is to overawe the public atlarge by increasing the power of judgesto proceed against the contemner. This isnot going to help matters and it will lead


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to a more and more brazen response of theincumbents. This will leave the institutionfe stering. People are paying a veryheavy price for maintaining the independ-ence of the judiciary, where it is made intoa fetish, preventing any attempt to cleansethe institution.

Impeachment for misbehaviour is in facta process, which is impossible to achieve

under the procedures now prescribed. Itappears to be a most inefficacious remedyone can think of. The US experience is nodifferent. Raoul Berger in his treatise onimpeachment quotes the opinion ofsenator McAdoo after the conviction ofJudge Halstead Richter: the nature of theprocess is such that, as evidenced in therecent proceedings, it seriously interruptsfor long periods the necessary transactionof important legislative business, placesan intolerable burden of hearing and weigh-ing testimony upon senators already heavily

charged with the responsibilities, and forthis reason alone is always resorted to withextreme reluctance even in cases of fla-grant misconduct. 7 He goes on to saythat this gives an assurance that theerrant judges will never be visited withimpeachment which is a standing invita-tion for judges to abuse their authoritywith impunity and without fear of re-moval. Woodrow Wilson described im-peachment as an empty menace. TheCongress was, said some, willing to suffera misbehaving judge.

In earlier periods of constitutional his-tory, both in the US and UK, a judges termwas pleasure tenure and removal presentedno problems. It was felt that when powerwas granted to be held during goodbehaviour, to carry the law into executionthe English law provided for a proceedingto forfeit the office by a writ scire facias.This practice was used to repeal a patentin case of forfeiture. This remedy was usedto protect offices held during goodbehaviour by persons under Royal patent(appointment) to protect them from arbi-

trary removal. Since then in the UK thewrit scire facias was available for theremoval of judges for bad behaviour. Thetermination of office on bad behaviourmay be an instrument of checks andbalances in a parliamentary and presiden-tial system, but the citizen too has afundamental right to clean governance ininstitutions and the remedy to repair theseinstitutions is necessary as an innovativealternative relief, which does not inviteexecutive invasion, and thus also preservingthe independence of the judiciary.

EPW

It is time we gave some thought to re-defining the independence of judiciary.There should be a legislative mechanismto set the limits of good behaviour bydefining misbehaviour. The definitionwould inform every judge what constitutesthe removable cause. In such a definitionas Raoul Berger sets out that as the removalof judges may be controversial, it may be

useful to tighten and clarify the definitionand entrust it to a special court comprisinga committee of judges. The ConstitutionalReview Committee in its report March 31,2002 in Chapter 7 deals with the removalof judges. It recommends the establish-ment of a National Judicial Commission.A committee comprising the CJI and thetwo senior-most judges are to inquire intothe complaint and convey their views tothe president who, shall on the basis of thereport, cause a detailed investigation intothe complaint and refer it for hearing and

adjudicating by a bench of seven judgesof the court. Impeachment may be reservedfor misbehaviour of a serious natureaffecting national interests. The investi-gation should be completely divorced fromthe function of hearing and judging. Thefact that the judges alone will try the erringjudge should be a safeguard to the indepen-dence of the judiciary.8 Continuing ajudge found to be guilty of deviantbehaviour by transferring him to anotherhigh court is unethical and highly objec-tionable. How can a judge found guilty

of misdemeanour be foisted on the litigantpublic of another state? No option to resignshould be given to those found guilty ofmisbehaviour.

How should one select our judges? Thereis extensive campaigning for the setting upof a National Judicial Commission, underthe Constitution (Ninety-Eight) Amend-ment Bill 2003, which suggests the settingup of a National Commission consistingof (a) the CJI of India; (b) two other judgesof the Supreme Court, next to the CJI inseniority; (c) the union minister in charge

of law and justice; one eminent citizennominated by the president in consultationwith the prime minister. The last is a homageto democracy. The second one is by thejudicial accountability committee com-prising prominent lawyers and consti-tutional experts located currently atNew Delhi. The National Judicial Com-mission recommended by them consistsof the following: (a) the chairman shall beappointed by a collegium consisting of allthe judges of the Supreme Court; (b) onemember is to be appointed by the

collegium comprising all chief justices ofthe high courts; (c) one to be nominatedby the union cabinet; (d) one member tobe appointed by the leader of the op-position; in consultation with other op-position parties in both houses; (f) onemember recommended by the collegiumcomprising all the members of the BarCouncil of India.

The government, of course, did not botherabout the representative status of the bodyrecommended by it. There is a large popu-lation of lawyers who provide the staff forthe judiciary, from the magistrate at thelower level to the judges of the districts,high courts and the Supreme Court, apartfrom the tribunals for various purposes atvarious levels, and it is odd this 10 lakhand odd population is not even givenconsultative status. They are members ofBar Associations, which are working asprofessional bodies in every nook and

corner of the country wherever there islegal work to do. It may not be difficultto work out a consultative status in thematter of appointment to higher judiciary.At the lower levels, there are methods totest competency while it is at the higherlevels that there is no such test. As I oftensay, we get good and competent personsby culpable oversight. Entrusting respon-sibility will discipline the profession andwill give meaning and vision to their in-dependence. The effort should be toannounce the names of the contenders to

the office. Their appointment need not beshrouded in opacity.

Address for correspondence:

[email protected]

Notes

1 Golaknath AIR 1967 SC 1642; Keshavananda

Bharati AIR 1973 SC 1461.

2 E Cahn (1967) Confronting Injustice in

Lord Lloyd of Hampstead, In troduction

to Jurisprudence, fourth edition, edited by

MDA Freeman, Steven and Sons, London,1979.

3 V R Krishna Iyer (2001), Off the Bench.

4 Wallace Mendelson (1987), Supreme Court

Statecraft: The Rule of LawandMen, Asian

Books, New Delhi, p 219.

5 Second Advocates on Record Association, AIR

1994 SC 268.

6 Ralf Dahrendorf (1985), Law and Order

(The Hamlyn Lectures), Steven and Sons,

London.

7 Raoul Berger (1974), Impeachment: The

Constitutional Problems, Harvard University

Press, Cambridge, MA, p 167.

8 Ibid, pp 173-77.

Documents

Selection and Impeachment of Judges