Judicial Accountability

Article 124(5): "Parliament may by law regulate the procedure for the presentation of an address and for the investigation and proof of the misbehaviour or incapacity of a Judge under clause (4)." The law made under it is the Judges (Inquiry) Act, 1968, named in Ravichandran Iyer. Article 218 applies both clauses to a High Court Judge.

"Misbehaviour" is not defined. Ravichandran Iyer records that "the word 'misbehaviour' was not advisedly defined", and draws the distinction the chapter turns on: "Every misbehaviour in juxtaposition to good behaviour, as a constitutional tautology, will not support impeachment but a misbehaviour which is not a good behaviour may be improper conduct not befitting to the standard expected of a Judge."

Article 235 governs the judges below the High Court: "The control over district courts and courts subordinate thereto including the posting and promotion of, and the grant of leave to, persons belonging to the judicial service of a State and holding any post inferior to the post of district judge shall be vested in the High Court", saving the officer's right of appeal under his service rules. Discipline there is real and ordinary: an officer may be suspended, transferred, reduced in rank or dismissed. But the disciplinary authority is the High Court, not the State Government, so article 235 is an accountability provision and an independence provision at once.

Contempt. Article 129 makes the Supreme Court "a court of record" with "all the powers of such a court including the power to punish for contempt of itself", and article 215 says the same of every High Court. That is not a sanction on judges but a power over those who attack them, and Ravichandran Iyer treated it as the reason a bar association must be careful how it proceeds.

The criminal law reaches a judge

Facts. K. Veeraswami v. Union of India, 1991 SCR (3) 189, 1991 SCC (3) 655, decided on 25 July 1991 by a Bench of five. A case was registered against the appellant, a former Chief Justice of a High Court, under the Prevention of Corruption Act, 1947 for possession of property disproportionate to his known sources of income. He moved the High Court to quash the proceedings, arguing that the Act cannot apply to a Judge of a superior Court, because prosecution needs the sanction of the authority competent to remove him and no single authority can remove a Judge.

Held. By a majority, that "A Judge of a High Court or of the Supreme Court is a 'public servant' within the meaning of s. 2 of the Prevention of Corruption Act, 1947", and may be prosecuted after sanction under section 6. The reasoning is the sentence to remember: "No person is above the law. In a proceeding under Article 124 of the Constitution, a Judge can merely be removed from his office. He cannot be convicted and punished." Removal and prosecution are different and do not exclude each other, and it would be irrational that a subordinate judge should be convicted while a High Court judge escapes in identical circumstances. For sanction the President is the competent authority under section 6(1)(c). The Court then built safeguards it could find nowhere in the statute: "No criminal case shall be registered under s. 154, Cr. P.C. against a Judge of the High Court, Chief Justice of the High Court or a Judge of the Supreme Court unless the Chief Justice of India is consulted"; there is similar consultation at the sanction stage, which should "be guided by and in accordance with the advice of the Chief Justice of India". Verma J. dissented, holding the Act inapplicable to such constitutional functionaries.

Why it matters. It settles that the criminal law is not suspended for judges, and shows the Court's method here: accept the accountability, then design the safeguard itself. The safeguard is genuine, since an agency free to register a case against a judge would hold a weapon over the judiciary. It is also open to the standard criticism, that the Court gave the Chief Justice of India a veto the statute does not mention.

The gap below impeachment

Facts. C. Ravichandran Iyer v. Justice A.M. Bhattacharjee, 1995 SCC (5) 457, decided on 5 September 1995 by a Bench of two. Bar bodies in Bombay passed resolutions pressing the Chief Justice of that High Court to resign over allegations about royalties received for his books. An advocate petitioned under article 32 to restrain them from coercing the judge, and for an investigation and removal proceedings. The Chief Justice resigned while the petition was pending.

Held on the gap. Conduct that damages confidence in a judge may fall well short of impeachable misbehaviour, and "Bad conduct or bad behaviour of a Judge, therefore, needs correction to prevent erosion of public confidence in the efficacy of judicial process." But the answer is not the Bar's resolutions: "The threat of action on vague grounds of dissatisfaction would create a dragnet that would inevitably sweep into its grasp the maverick, the dissenter, the innovator, the reformer, in one word the unpopular."

Held on what must be done instead. "It seems to us that self-regulation by the judiciary is the only method which can be tried and adopted." A Bar association must first gather "specific, authentic and acceptable material", then meet the judge in camera or approach the Chief Justice of that High Court, who verifies the imputation, if necessary by confidential enquiry, and consults the Chief Justice of India. Once the Chief Justice of India is seized of it "the Bar should suspend all further actions", so that what is done does not even appear to be done under pressure. He may tender advice or initiate action, and "On the decision being taken by the Chief Justice of India, the matter should rest at that." Where the complaint is against a Chief Justice of a High Court, the Bar goes to him directly.

Why it matters. It is the source of the in-house procedure and the answer to the standard question about a judge who cannot be impeached. Notice its two limits, both admitted in the judgment. It has no statutory force: recourse to it was not taken in that very case, "may be, because of absence of legal sanction to such a procedure". And its outcome is advice, its real sanctions being withdrawal of judicial work and a request to resign.

The procedure was later put into written form, and the Full Court also adopted a statement of judicial conduct commonly called the Restatement of Values of Judicial Life. Neither text has been read for this book, so nothing is quoted from either and no date given.

The argument about an external mechanism

For. Self-regulation gives the accused institution the decision, and the public sees no reasons, no finding and no record. Ravichandran Iyer's machinery ends with the Chief Justice of India and "the matter should rest at that", so there is nothing to appeal against and nothing to inspect. The subordinate judiciary has a disciplinary authority under article 235; the higher judiciary has none.

Against. Any external body must be constituted by somebody, and the executive is the largest litigant in the country. A commission that can investigate a judge can chill him, and it need never actually act: the existence of the power is the pressure, as in [Judicial Independence]. Veeraswami shows the compromise the Court prefers, accepting the outside power and then requiring the Chief Justice of India's participation before it is used.

The middle position, and the one an examiner rewards, is that the objection to self-regulation is not that judges decide but that nothing is published.

Three routes, kept apart

A worked example

The Bar Association of a High Court believes Justice Rao reserves judgments for years and behaves offensively in court. Neither is a crime and neither will carry two thirds of both Houses.

Step one, may the Association resolve that he resign? On Ravichandran Iyer, no. That is the "dragnet" the Court warned against, and an attack that tends to shake confidence in a judge's integrity may itself be dealt with as scandalising the court under articles 129 and 215.

Step two, what must it do first? Gather "specific, authentic and acceptable material". Dissatisfaction is not material.

Step three, whom does it approach? The office bearers may meet the judge in camera, or take the material to the Chief Justice of that High Court. Justice Rao is not the Chief Justice, so the Chief Justice of India is not approached direct.

Step four, what does the Chief Justice of the High Court do? Verifies, if necessary by confidential enquiry, and consults the Chief Justice of India. The Bar then suspends all action, so that whatever is done is not taken under pressure.

Step five, and if the allegation had been of a bribe? A different route. On Veeraswami the Prevention of Corruption Act applies, but no case may be registered under section 154 of the Code of Criminal Procedure without consulting the Chief Justice of India, and sanction is for the President, guided by his advice.

What it does NOT mean

It does not mean a judge is immune from the criminal law. Veeraswami decided the opposite. What he has is a procedural safeguard against a case being registered on somebody's initiative alone.

It does not mean the in-house procedure can remove a judge. Only article 124(4) can. The procedure produces advice, and its force is a Chief Justice's ability to withdraw judicial work, not a power to punish.

It does not mean accountability is the enemy of independence. Both cases begin from independence and reach accountability through it, which is why the safeguard in each runs through the Chief Justice of India and not through the executive.

Quick revision

• Article 124(4): removal only on proved misbehaviour or incapacity, address of each House, majority of total membership and two thirds present and voting, same session. Article 218 for High Court Judges.
• Article 124(5): Parliament regulates investigation and proof, by the Judges (Inquiry) Act, 1968. "Misbehaviour" is deliberately undefined, and not every misbehaviour supports impeachment.
• Article 235: control over district and subordinate courts is vested in the High Court, so ordinary discipline exists below the High Court and not above it.
• Veeraswami (1991): a Judge is a public servant and prosecutable; "No person is above the law"; sanction by the President; no case registered without consulting the Chief Justice of India. Verma J. dissenting.
• Ravichandran Iyer (1995): the gap between bad behaviour and impeachable misbehaviour is filled by self-regulation; the Bar must gather specific material, go to the Chief Justice, and then suspend action.
• The case against self-regulation is opacity, not judicial control. That is the distinction to draw in an answer.

Test yourself

1. Set out the four cumulative conditions in article 124(4) and explain what the word "proved" adds.

2. What exactly is the gap Ravichandran Iyer identified, and what procedure did it lay down to fill it?

3. Veeraswami imposed a safeguard the statute did not contain. State it, and argue for and against it.

4. How does article 235 make the accountability of the subordinate judiciary different from that of the higher judiciary?

5. A Bar Association resolves that a judge should resign. Advise it on Ravichandran Iyer.