Impeachment of judges: A

theoretical stroke on judicial

accountability.
Introduction.

The basic notion of judicial independence is logically built into the

very notion of adjudication itself – impartiality, and therefore a fair
outcome, is rendered both more likely and more visibly likely by the
fact that the decision maker possess the appropriate degree of
autonomy. But autonomy is measured on a continuum than a simple
dichotomy and most of the time in most societies this autonomy has
been limited and has often varied depending on the kind of dispute
involved. The Anglo-American concept of judicial independence was
invented in England in the eighteenth century and its basic elements
have been exported elsewhere to its immigrant successor nations such
as America, India, Australia, Canada, although the same is not widely
copied elsewhere.

Martin Shapiro commented that the court is the manifestation of

the social triad – an institution to accommodate the resolution of
disagreement.1 His exposition of the phenomenon depicted two
actors in a social action find themselves in disagreement and unable
to resolve the same on their own yet needing some resolution in order
to continue with normal interaction, they turn to a third party to help
them find an answer. Initially thus, the system may be imagined as
comprising a triple requirement of consent. First, both parties
should consent to a specific individual (or a group thereof) to act as
the neutral third party; it cannot be imposed by one of the parties:
both have to consent to it. Second, the parties must agree to the
norms and standards against which the disagreement is to be
resolved. Third, both parties must consent to the outcome once it is
announced. The last is the trickiest part of the process; if it fails, the
resolution has failed, but at the moment of choosing a winner, the
third party has implicitly cast the whole logic the triad in doubt by
turning it into two against one. One aspect of a successful outcome is
persuasion – the third party persuades the loser that the outcome is
legitimate. This is again buttressed by a visible autonomy on the part
of the third party: the decision maker is not biased, not under the
sway of another, not motivated by anything save the desire to achieve
the appropriate outcome.

Courts are the most formal form of the triad, and they are
characterized by a triple shift that transforms all three of the
consent-driven elements of the simple model. The mutual free choice
of a third party is replaced by the arbitrary assignment of an
officeholder, an official appointed by government on the basis of
appropriate formal credentials. The mutual free choice of relevant
norms is

1
Martin Shapiro, Courts :- A Comparative and Political Analysis (University of Chicago Press, 1981),
Ch. 1, “The Prototype of Courts”. See McCormick, Judicial Independence and Judicial Governance
in the Provincial Courts, Canadian Association of Provincial Court Judges, available at
http://www.judges- juges.ca/en/publications/JudgeBook.pdf.
 1

replaced by the background of pre-existing social norms, increasingly

laws that have taken written form. The freedom at the end of the
process to accept or walk away from the proposed outcome is
replaced by an officially imposed and binding outcome. But the critical
pivot remains the moment of decision, the critical challenge is
reconciling the loser to his defeat, and a critical element of the
solution is the visible autonomy of the decision maker.

Historical background of the Anglo-American concept.

The early English judiciary was an extension of the king’s authority2
or that they dispensed the king’s justice and they served at the king’s
pleasure, their appointment terminating with the death of the king.
The phrase that has been used to describe them – lions under the
throne which indicated that they posed no threat to the king from
such a position; they roared not at, but for, the throne. Though it is
not that they had no such thing as autonomy, for they exercised
considerable discretion in the modeling of the common law and they
were appointed from the ranks of a relatively autonomous legal
profession, they were however kept on a very short leash when it
came to anything that might encroach upon the monarchy itself.3 The
power they exercise was basically non- threatening to the status and
interests of the monarchy.

During the 17th century the monarchy was twice undermined, first by
the English Civil War which demonstrated that kings could be
executed, whereafter by the Restoration (The Glorious Revolution)
which showed that royal authority was something that could be
offered conditionally. In the 18th century when the monarchy was on a
steady retreat from administrative functions, the judiciary too was
extricated therefrom and placed in a sui generis demarcation bereft of
both parliamentary authority and transformation into a bureaucratic
one itself. In this twilight stature of the judiciary the concept of Anglo-
American judicial independence developed.

In 1701 the Act of Settlement established that judges could be

removed only for cause and only by Parliament, i.e. they no longer
served during the king’s life or his pleasure, but till their conduct
breached expected norms of judicial behaviour on or off the bench.
When they were to be removed such, it was not by a unilateral action
of the king, but by resolution of both Houses of Parliament. 4

This step might be understood fully in analogy to the situation

envisioned under the Indian Constitution. The role of the 1701 Act is
subject to misinterpretation on grounds that it heaved the judiciary
from under the direct control of the king, to place it in direct control
of the parliament. The real effect of the Act however

2
The vestige of nomenclature is evidenced today. Judges sit in places called courts.
3
See Mary Volcansek, Judicial Misconduct :- A Cross-National Comparison (University Press of
 2

Florida, 1996), p. 117.

4
Academic scholars debate whether the Act of Succession replaced or simply added to the more
traditional remedies, such as the writ of scire facias or a criminal information filed in the Court of
King’s Bench at the suit of the attorney-general; Lederman reviews the authorities, and concludes
that even if these remedies remain their scope is extremely narrow. See Lederman, “Judicial
Independence I” at 787.
 3

was to preclude effective royal control without placing it in direct

parliamentary control. The Act of Settlement created an almost
magical balance- point; parliament could remove judges, but
the process was so difficult, so almost-but-not-quite-impossible,
that it never did.5 The logical process was completed later in the
century with the guarantee of life tenure6 and with the guarantee of
security of salary7 though there remained some unsolved issues with
the interpretation thereof concerning whether the latter implied
guarantee as to a salary set by Parliament or whether it
prevented reduction of salary for the bench as a whole.8 Thus
serving long terms with no effective mechanisms of accountability,
and freed from either the stick of reduced salary or the carrot of
special bonuses, the English judge had no institutional reason not to
be as impartial as his professional values required; or, no
accountability.9

The objective of judicial independence is to make the judges as

independent of the government as possible, but should not undermine
their dependence, for legitimacy’s sake, on the legal profession itself.
Judges must not only be drawn from the ranks of lawyers, but they
must be lawyers in good standing who enjoy a reputation among their
peers which effectively remains their reference group, and the people
to whom they justify their decisions, the community with which they
identify and whose respect they value and pursue. Thus it is this dual
endeavour to conform to the standard of expectations heaped upon
them that effectively keeps the individual judges in restraint from
over-reaching of their powers.10

Need for impeachment –

Judicial accountability and judicial independence.

Judicial independence can be explained in the normative and positive

senses. Normatively, judges should be autonomous moral agents who
can be relied upon to carry out their public duties irrespective of
venal or ideological considerations. Independence in this sense is the
cherished and desired attribute of a judge’s character. But judges
being human and their verdicts affecting many, at least some of whom
are influential and powerful figures, including the state and from the
state, so there should also be institutional protections to shield them
from threats and temptations that might come in their way. Judicial
independence in this sense is a feature of the institutional setting
within which judging takes place. It is also complex in the sense that
it is not the objective needed to be achieved,

5
In England, no high court judge had been impeached from 1830-2000. Ibid, p. 127.
6
Ibid, p. 116.
7
Ibid, p. 118.
8
Though reduction of salary is an action proscribed by the Constitution, it is always up to the
 4

Parliament to effectively reduce real salaries of judges, taking advantage of inflation. See Ferejohn,
“Dynamics of Judicial Independence: Independent Judges, Dependent Judiciary”, Symposium on
Judicial Independence, University of Southern California, 1998. Also see Lederman, “Judicial
Independence I”, p. 793.
9
For detailed discussion on the sources of accountability, see Ch. 2 of this treatise.
10
McCormick, p. 8.
 5

itself, but rather the method needed to be adopted to achieve that

objective, the latter being inviolability of rule of law or upholding of
constitutional values etc.

Institutionally, judicial independence may be understood either

narrowly as a set of protections for judges or as a broader guarantee
of the integrity of the judicial system. Historically, attempts to secure
judicial independence have often taken the narrower perspective and
focused on providing protections individual judges that presumably
allow them to decide cases free from threats of coercion or
blandishments.

But why would textual provisions in the constitution, mere

parchment barriers in the words of Madison, be effective in
protecting judges. One of the answers lie in the structural
protections afforded by the constitution. Political interference on
judicial terrain such as impeachment etc. or any
legislative/executive action to adversely affect the judicial psyche
require of politicians high levels of coordination to overcome the
checks and balance imposed by the constitution. For example,
judicial impeachments in America must be tried in the Senate
subject to a two-thirds voting rule and majorities of this size are
hard to arrange and sustain over any great length of time.11

In fact partly the answer to this lies in the complex inter-

dependencies the constitution created among the various branches of
the state. This enabled each hereof to exercise its assigned functions
but required the same to enlist the cooperation of others for certain
purposes. For example the President can refer any matter to the
supreme court under article 143, and there is always the provision for
judicial review of legislative (and executive) acts.

The only real barriers to the frequent resort to impeachment or by

necessary implication, legislative intrusion into judicial territory, are
therefore political. At least in politically controversial cases
impeachment remains a complicated, costly, and visible process that
exposes politicians to electoral danger and distracts them from
politically more attractive activities. For that reason it is usually
difficult to mobilize opinion in the House sufficiently large in number
for the purpose.

Beyond these formal arrangements there is the more abstract but

persistent threat of politicians trying to mobilize popular sentiment
against judges12 whereas judges are unable to respond thereto
without violating their obligation to refrain from discussing cases sub-
judice. But these by and large attacks against individual judges are
not hurtful of the institutional judicial system per se.
Furthermore it is virtually impossible to affect or alter any judicial
decision once the same is reached.13 And attempts to modify final
court decisions are anyway
 6

11
See for e.g., John Ferejohn, Dynamics of Judicial Independence: Independent Judges,
Dependent Judiciary.
12
Ibid, p. 7.
13
This was stated as the settled principle in People’s Union for Civil Liberties v. Union of India, (2003)
4 SCC 399 where the supreme court held that the legislature whereas can fundamentally alter the
basis of
 7

subject to judicial review.14 But nonetheless the legislature can strip

the judiciary’s power or domain by nibbling away at court jurisdiction
by removing cases to administrative or other tribunals, altering rules
of court procedure, limiting the number of judgeships or failing to fill
the ones that exist, up and failing to give full effect to court orders. 15
Politically, these events may not appear confrontational but their
cumulative effect can substantially erode the capacity of the judiciary
to protect individual liberties by removing such issues from courts.
This system of independent judges within a dependent judiciary,
whatever its merits, sets up certain kinds of characteristic tensions
within the constitutional order. For example, individual judges are
quite free to decide cases without fear of negative personal
consequences even if the predictable result of such decisions is quite
negative for the judiciary as a whole and indeed for the exercise of
the judicial power. In a sense, politically controversial decisions –
whether they are internally well justified or not – are collective bads
from the point of the view the judiciary as a whole. Given the threat to
all judges of irresponsible, incompetent, or simply overly courageous
individual judges it is probably no surprise that the judiciary has
found ways to mitigate the damage that any individual judge can do,
and to make sure that if a controversial step is to be taken, it is taken
with adequate judicial deliberation. In an important sense, the
development of appellate hierarchy with collegial courts at the
appellate levels can be understood as strategies to ensure that no
single judge can, by his or her actions alone, inflict too much damage
on the judiciary as a whole by making aberrant or overly courageous
judgements.

It is always possible that some judges will make mistakes or abuse the
power of their office but the availability of appeal and the collegial
nature of courts, places, along with the other disciplinary
mechanisms, limits on how badly things can go wrong. But remedying
mistakes etc. ex post is an expensive proposition, both for the litigants
and the system as a whole besides being damaging to the rule of law
because whereby it becomes infinitely more prudent to limit
judgeships or allow persons to be judges, to those who can be relied
upon to be competent and cautious not to expose their fellow judges
to scathing political reaction. While all of the judges cannot be
guaranteed to be of strong mettle and appropriate character and
temperament, their selection process should be able to partially
compensate therefor. Ensuring that judicial process takes place in
institutional circumstances that afford insulation from pressure and
external threat, should be able to ameliorate the above pains to an
extent.

Norms of judicial independence.

the judgement either prospectively or retrospectively to render a decision void, it cannot

overrule or supercede a judgement of the court without lawfully removing the defect or the
infirmity pointed out by the court because it is obvious that the legislature cannot trench on
 8

the judicial power vested in the courts.

14
People’s Union for Civil Liberties v. Union of India, (2003) 4 SCC 399.
15
Indeed, it was once commented by an American congressman, “Marshall has given his orders, let’s
see how he implements them”. See discussion on Marbury v. Madison in Gobind Das, Supreme Court
in Quest of Identity.
 9

The institutional structure established by the constitution balances

protections for individual judges with a judiciary dependent on other
branches of the government in order to operate its constitutional
functions. This arrangement may be construed as an institutional
effort to facilitate realization of the values viz., rule of law,
constitutional government and democracy.

In the traditional sense judicial independence implies essentially

independence from governmental interference. This may be achieved
by one or more of the following methods :-

Institutional :- Through the construction of rules – statutory or

constitutional, attached with sanctions, proscribing public officials or
government from infringing on judicial territory.

Moral :- Through the development of a set of conventions or norms of

self restraint that politicians somehow consider as binding on
themselves – a kind of political morality without the necessity for a
formal enforcement mechanism.

Electoral :- Through enforcement of formal rules and conventions

politically,
i.e. by the people through the ballot box.

The positive and the negative aspects of independence.

Judicial independence comprises two kinds of freedom – freedom from
doing something and freedom to do something, the negative and the
positive aspects thereof. The first concerns certain protections for the
judiciary from various forces seeking to subvert the same while the
latter encapsulate freedoms for the judiciary as an institution and
judges as individual participants of the judicial system to act in
certain manners piously directed towards upholding the rule of law,
constitutionalism, democracy etc. Threats to judges and the judiciary
can be of various forms.16 These include physical compulsion,
pecuniary considerations, threat to career, and so on.

Procedure for impeachment –

Whether conducive and efficacious for the purpose.

The judiciary is in the news in ways that do not do it credit. Beginning

with the defeated Justice V. Ramaswamy impeachment in the early
1990s, the last decade portrays scandals. These include the Bombay
Pay-off Scandal of 1990, the controversy over the Bombay High Court
Chief Justice Bhattacharjee receiving large "foreign" royalties in 1995,
controversies, however founded or unfounded, over Justices Punchi
and Anand - both Chief Justices of India - and Justice Bharucha's
declaration that 20 per cent of judges are corrupt. The year 2002 has
been a bad year. In Punjab, High Court judges are accused of having
received favours from the Chairman of the Public Service
Commission. In Rajasthan, the allegations countenance a High Court
 10

judge and his Deputy Registrar soliciting

16
Pamela S. Karlan, “The Two Concepts of Judicial Independence”, p. 2.
 11

sexual favours. In Karnataka, allegations canvass compromising

sexual conduct involving High Court judges. In Patna, there are
serious allegations of corrupting the legal process by lawyers and the
registry. Public confidence is shaken.

Recent history shows that where there is a will, constitutional

amendments are possible. But, there is a lack of political and judicial
will to introduce changes. Today, judges collectively and in judicial
orders make all kinds of suggestions on their pay, salary, perks and
other things. But no consensus suggestion to interrogate judicial
indiscipline emerges with credible clarity. Individually India's Chief
Justices provide evasive and contradictory answers.

Furthermore, India needs a policy on embargoing post-retirement

jobs for judges whilst increasing their retiring age. The Public
Commission procedure came to the fore in 1921 after the Marconi
scandal around 1918 because Parliament could not be wholly trusted.
Parliament needs to be more rigorous and credible - even though the
nation was let down by the Bofors Joint Committee which wrongly
absolved the, then, Prime Minister and others in 1987.The Indian
judiciary has to confront its public image. India's judges
are massively powerful. They both compensate bad governance as
well as fulfil the judicial quest for power. Judges may err in their
judgments. But, if confidence in the Judiciary abates, Indian
governance is in peril.17

Constitutionally a judge may resign in writing to the president or may

be removed in accordance with the procedures stipulated in clause
(4) of article 124, for a supreme court judge and under article 217 the
same rests applicable in case of a high court judge. The president
cannot remove a judge himself but only after an address by each
House of the parliament supported by a simple majority of the
respective House and two-thirds voting rule is complied with. 18 A
notice is given of a motion for presenting an address by hundred
members of the House of the people or fifty members of the council of
states the speaker or chairman as applicable, after consultation
therewith may admit the motion in which event he shall keep the
motion pending and shall constitute within reasonable time a
committee to investigate into the allegations, comprised of three
members – one whom should be the chief justice or a judge of the
supreme court,19 the second, who should be a chief justice or a judge
of one of the high courts20 and third, one who in the opinion of the
speaker or chairman is a distinguished jurist.21 Upon conclusion of
investigation the committee shall submit its report to the speaker or
chairman, who convened the committee, or both if it was so
convened22 who shall cause it to laid before the House or the Council
as applicable or both. The deliberations follow and if the House or
Council finds the findings grave enough
 12

17
Rajeev Dhawan, “Judicial Propriety and Tehelka”, The Hindu, 29/11/2002, available at
http://www.tehelka.com/home/20041009/new/march/7/ca030703judicial.htm, last accessed, 25/12/2005.
18
Article 124 (4).
19
Clause (2) (a).
20
Clause (2) (b).
21
Clause (2) (c).
22
s. 4 (2).
 13

to merit a removal, such opinion shall be presented to the president

within the same session for it to come to fruition.

An example might be supplied herewith for better comprehension of

the issues raised hereunder23 :-

Certain allegations of financial improprieties and irregularities

were made against Justice V. Ramaswami when he was the Chief
Justice of the High Court of Punjab and Haryana. There were certain
audit reports concerning certain items of purchases and other
expenditure. The then Chief Justice of India Justice Sabyasachi
Mukharji took note of the reports in this behalf and of
representations submitted to him in this behalf and advised Justice
Ramaswami to abstain from discharging judicial functions until those
allegations were cleared. Thereafter a Committee of three Judges was
constituted by the then Chief Justice of India to look into the matter
and to advise him whether on the facts Justice Ramaswami might be
embarrassed in discharging judicial functions as a Judge of this Court.
The Committee tendered its advice to the Chief Justice. It noted that
Justice Ramaswami had declined to acknowledge the jurisdiction of
any Committee to sit in judgment over his conduct. The Committee
accordingly abstained from an inquiry on the charges but on an
evaluation of the matter before it expressed the view that as long
as the charges of improper conduct involving moral turpitude were
not established in the various enquiries then pending the operation
of the constitutional warrant appointing him a Judge of the Court
could not be interdicted.
Thereafter in February 1991 108 Members of the Lok Sabha
presented a Motion to the Speaker of the 9th Lok Sabha for Address
to the President for the removal of the learned Judge under Art.
124(4) of the Constitution read with the provisions of the Judges
(Inquiry) Act 1968. On 12-3-1991 the Speaker of the Lok Sabha in
purported exercise of his powers under S. 3 of the said Act
admitted the Motion and constituted a Committee as aforesaid to
investigate the grounds on which the removal was prayed for. Soon
after the decision of the Speaker to admit the Motion and
constitute a Committee to investigate the charges was made the
term of the Ninth Lok Sabha came to premature end upon its
dissolution. The petitioners question the legality of the Speaker's
order and assert that at all events the Motion had lapsed with the
dissolution of the House. This contention is supported by the
Union of India. They say that the effect of dissolution of the
Ninth Lok Sabha is to "pass a sponge across the parliamentary
slate" and all pending motions lapse. The motion for removal it was
urged is no exception.24

After so many years of almost inaudible criticism about the conduct of

judges, in 1992 a resolution was passed in the chief justices
conference held at New Delhi on September 18 and 19 where it was
resolved to restate the pre-existing and
 14

23
Till date only one such action was brought before the House, in relation to Justice Ramaswami, in
pursuance of financial irregularities committed thereby as chief justice of the high court of Punjab &
Haryana.
24
Sub-committee on Judicial Accountability v. Union of India, AIR 1992 SC 320, para. 5, quoted.
 15

universally accepted norms, guidelines and conventions, reflecting

the high values of judicial life to be followed. A committee was
appointed by the CJI to submit a draft of the restatement of values
that should guide their conduct whether in office or in their personal
lives. The draft came up for consideration and was approved by the
full court of the Supreme Court and a resolution was passed,
adopting the Restatement as binding on the judges.

The Restatement empowers the CJI to take action against errant

judges for violating 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 in a club or any other

association. He can, however stand for an elective post in any
association 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 debate or 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.
 16

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
privilege attached 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. 25

And what shall we do with the errant judges.

This question remains unanswered. The institution is avoiding facing
the issue on a very misleading premise that debating these issues
might bring down the prestige this institution enjoys and disable it
from a proper discharge of its constitutional obligations. An elected
appointee is only removable from office by impeachment as provided
in Article 124 (4) of the Constitution. A judge who is charged with
misbehaviour has to be arraigned in each house of parliament by an
address in each house and the voting for removal is cumbersome
ensuring failure of voting recess. While parliament sits as the high
court against these high constitutional appointees, its decision is
partisan, the party whip controlling the result.

Impeachment.
The country has witnessed this spectacle in the course of the
impeachment of the Tamil Nadu judge Ramaswamy. There is, in the
case of a whip, only a collective decision without either a collective or
individual application of mind to the issue of misbehaviour of the
judge in the dock. This arraignment before parliament has to be
preceded by an investigation in accordance with the provisions set out
in the Judges (Inquiry) Act 1968. The proposal should have the
support of the majority of the house with two-thirds majority in each
house present and voting. As a judge can be tried for misbehaviour
his tenure can only be a tenure on good behaviour. It cannot be
anything else. Unfortunately, the cumbersome disciplinary proceeding
can only be on proven misbehaviour. This is too comprehensive an
expression and when undefined it gives licence to regular
misbehaviour of various grades leading to an erosion of norms
rendering the institution useless for constitutional purposes. Tenure
to last till the persons reach the age of superannuation is subject to
good behaviour. That misbehaviour results in termination of the office
in respect whereto judges are not even aware that their term is not as
completely protected as they imagine. They should realise that it is
not the cumbersome procedure for their impeachment that protects
 17

25
V.R. Krishna Iyer (2001), Off the Bench, reported in K. G. Kannabiran, “Selection and impeachment of
judges”, PUCL Bulletin, March 2005, available on http://www.pucl.org/Topics/Law/2005/judges-
selection.htm, last accessed, 25/12/2005.
 18

their tenure but that, at least in theory, their tenure is conditional

upon good behaviour, irrespective of the age of their superannuation.
The first time the attempt at impeachment failed because parliament
did not function as the high court of parliament. Issuing a whip to
control the voting in impeachment is an injudicious and arbitrary
exercise of power by a body, which claims to run a democracy. The
second time such an approach to judicial proceedings of the
parliament may not succeed because there is, a mood to restructure
institutions. The problem, is, then, how to control, short of
impeachment, the ever-increasing misbehaviour. The sole escape
determined by the Supreme Court was to transfer undesirable judges
from one high court to another, not without persuasion to the public
of there being no stigma attached hereto. Even campaigning for
impeachment to secure the 100 signatures of the representatives of
the people can be viewed as contempt. The plausible strategy
appeared to be overawing the public at large by increasing the power
of judges to proceed against the contemner. This submittedly shall not
to help matters and it is submitted will lead to a more and more
brazen response of the incumbents, probably leave the institution
festering. People are paying a very heavy price for maintaining the
independence of the judiciary, where it is made into a fetish,
preventing any attempt to cleanse the institution.

Impeachment for misbehaviour being a process impossible to achieve

under the procedures currently prescribed. That it might be
inefficacious as a remedy. The US experience is not divergent
herefrom. Raoul Berger in his treatise on impeachment quotes the
opinion of senator McAdoo after the conviction of Judge Halstead
Richter :-
The nature of the process is such that, as evidenced in
the recent proceedings, it seriously interrupts for long
periods the necessary transaction of important
legislative business, places an intolerable burden of
hearing and weighing testimony upon senators
already heavily charged with the responsibilities, and
for this reason alone is always resorted to with
extreme reluctance even in cases of flagrant
misconduct.26

He proceeded to say that this gives an assurance that the errant

judges will never be visited with impeachment which is a standing
invitation for judges to abuse their authority with impunity and
without fear of removal. Woodrow Wilson described impeachment as
an empty menace. The Congress was, said some, willing to suffer a
misbehaving judge.

In the C. Ravichandran Iyer v. A. M. Bhattacharjee Case the supreme

court drew attention to the hiatus between bad behaviour and
impeachable behaviour. The case concerned allegations of
 19

unjustifiably high payments from a publisher to Bombay high court

chief justice A. M. Bhattacharjee.27 While the incumbent

26
Raoul Berger (1974), Impeachment :- The Constitutional Problems, Harvard University Press,
Cambridge, MA, p 167.
27
Frontline, 24/3/1995.
 20

resigned following popular objection to the contrary, the supreme

court emphasised the need to evolve a method of self-regulation by
the judiciary in such cases of alleged misconduct. After Justice J. S.
Verma assumed responsibilities as Chief Justice of India in March
1997, a full court meeting of the supreme court on 7/5/1997 resolved
that the chief justice should devise an in- house procedure to take
action against judges who by acts of omission or commission did not
follow the universally accepted values of judicial life including the
values mentioned in the “Restatement of Values of Judicial
Life”, a document circulated by the Chief Justice. These values,
enunciated by the supreme court itself are intended to serve as a
guide for judges and are considered essential for an independent,
strong and respected judiciary. This Restatement, however, does not
have any statutory backing.28

The supreme court’s experiment with its internal corrective

mechanism began in May when it constituted a seven-member in-
house disciplinary committee. It was not clear how it would deal with
complaints of a serious nature against judges. If it found any
allegation valid an option before the committee was to request the
judge concerned to quit office, in the event of refusal whereby the
court (through the chief justice) would refuse to assign the
recalcitrant judge work as transpired in Justice Ramaswamy’s case.29
It was limited by the power of removal from office of a judge being
vested with the Parliament through an impeachment motion.30

The scope of misconduct was explained in the Ravichandran Iyer v. A.

M. Bhattacharjee case as extending to an action on the part of a
judge or arbitrator etc. to the unreasonable, its rationale and logic so
negligible as to readily warrant the suspicion of foul play in absentia
of any other logical or palpable grounds or reasons for such action
etc. of the person thus concerned. The same would be especially
applicable if any or more rights of any person were affected to the
prejudice thereof. In Re, A First Grade Pleader,31 intentional
concealment of knowledge from the court by he pleader etc. was
considered akin to misbehaviour, albeit though in the instant affair a
first grade pleader had served to conceal information from the court.

In the Ravichandran Case the Bar Council of Maharashtra and Goa

(BCMG), Bombay Bar Association (BBA) and Advocates’ Association
of Western India (AAWI) were clamouring for the resignation of A. M.
Bhattacharjee, Chief Justice, Bombay High Court. The court
considered the constitutionality of the impugned action of the above
in paragraphs 27-33 of the judgement. The court commented on the
following in the following manner :-
The Advocate Act, 1961 giving autonomy to the Bar Council of a state
and the Bar Council of India, empowers them to adopt such measures as
necessary to prevent
 21

28
The salient features of the Restatement are mentioned elsewhere in this project-paper.
29
Sarojini Ramaswamy v. Union of India, AIR 1992 SC 2219.
30
See N. Ventakesan, “Judging the Judges”, Frontline, Oct. 4-17, 1997, available at
http://www.flonnet.com/fl1420/14200180.htm.
31
AIR 1931 Mad 422
 22

decline in the standard thereof, and to ensure the high moral

ground of the profession in general. While reflecting that the judges
being chosen from the various levels of the bar at various stages are
technically still lawyers within that meaning, but its jurisdiction is
limited by the prohibition imposed on discussion of judicial conduct in
the Parliament, necessary implication wherefrom includes any and
every other forum whereby none is qualified to deliberate upon the
conduct of a judge in exercise of his duties in any of the high
courts or the supreme court, much less a bar association or a
group of practising advocates. They are prohibited to discuss
the conduct of a judge in the discharge of his duties or to
pass any resolution in that behalf,32 drawing upon section 2 (c) of
the Contempt of Courts Act 1971 which defines criminal contempt as
publication whether by words spoken or written, signs, visible
representations or otherwise of any matter or the doing of any act
whatsoever which scandalises or tends to scandalise, lower or tends
to lower the authority of any court or prejudices or interferes or
tends to interfere with the due course of any judicial proceeding, or
interferes or tends to interfere with or obstructs or ends to obstruct
the administration of justice in any other manner.33

Drawing upon Brahma Prakash Sharma’s case34 this court held Bar
Association had committed contempt of the court? This Court held
attack on a Judge, a wrong against the public and in the event that
the same tends to create apprehension in the minds of the people
regarding the integrity, ability or fairness of the judge and to deter
actual and prospective litigants from placing complete reliance upon
the court's administration of Justice, or if it is likely to cause
embarrassment in the mind of the Judge himself in the discharge of
his judicial duties, it would be scandalising the court and would have
to be dealt with accordingly.35 The court advised the above
associations etc. to exercise caution an discretion lest their flagrance
injure upon the integrity and popular faith in the judiciary, it said. In
paragraphs 39, 40 the court gave its final view :-

Bearing all the above in mind, we are of the considered view that
where the complaint relates to the Judge of the High Court, the
Chief Justice of that High Court, after verification, and if necessary,
after confidential enquiry from his independent source, should satisfy
himself about the truth of the imputation made by the Bar
Association through its office bearers against the Judge and
consult the Chief Justice of India, where deemed necessary, by
placing all the information with him. When the Chief Justice of India is
seized of the matter, to avoid embarrassment to him and to allow
fairness in the procedure to be adopted in furtherance thereof, the
Bar should suspend all further actions to enable the Chief Justice
of India to appropriately deal with the matter. This is necessary
because any action he may take must not only be just but must also
appear to be just to all concerned, i.e., it must not even appear to
 23

have been taken under pressure from any quarter. The Chief Justice
of India, on receipt of the
32
Ravichandran’s case, supra, para. 27.
33
Ibid, para. 28.
34
Brahma Prakash Sharma v. State of Uttar Pradesh, AIR 1954 SC 10.
35
Supra, n. 7, para. 32.
 24

information from the Chief Justice of the High Court, after being
satisfied about the correctness and truth touching the conduct of the
Judge, may tender such advice either directly or may initiate such
action, as is deemed necessary or warranted under given facts and
circumstances. If circumstances permit, it may be salutary to take
the Judge into confidence before initiating action. On the decision
being taken by the Chief Justice of India, the matter should rest at
that. This procedure would not only facilitate nipping in the bud the
conduct of a judge leading to loss of public confidence in the courts
and sustain public faith in the efficacy of the Rule of law and
respect for the judiciary, but would also avoid needless
embarrassment of contempt proceedings against the office bearers
of the Bar Association and group libel against all concerned. The
independence of judiciary and the stream of public justice would
remain pure and unsullied. The Bar Association could remain a useful
arm of the Judiciary and in the case of sagging reputation of the
particular Judge, the Bar Association could take up the matter
with the Chief Justice of the High Court and await his response
for the action taken thereunder for a reasonable period.36 In case
the allegations are against Chief Justice of a High Court, the Bar
Should bring them directly to the notice of the Chief Justice of India.
On receipt of such complaint, the Chief Justice of India would in the
same way act as stated above qua complaint against a Judge of the
High Court, and the Bar would await for a reasonable period the
response of the Chief, Justice of India.37 This would be a precedent,
the judge already having demitted office. 38

In earlier periods of constitutional history, both in the US and UK, a

judge’s term was pleasure tenure and removal presented no problems.
It was felt that when power was granted to be held during good
behaviour, to carry the law into execution the English law provided for
a proceeding to forfeit the office by a writ scire facias. This practice
was used to repeal a patent in case of forfeiture. This remedy was
used to protect offices held during good behaviour by persons under
Royal patent (appointment) to protect them from arbitrary removal.
Since then in the UK the writ scire facias was available for the
removal of judges for bad behaviour. The termination of office on bad
behaviour may be an instrument of checks and balances in a
parliamentary and presidential system, but the citizen too has a
fundamental right to clean governance in institutions and the remedy
to repair these institutions is necessary as an innovative alternative
relief, which does not invite executive invasion, and thus also
preserving the independence of the judiciary.

Article 53 of the constitution states that the executive power of the

Union shall be vested in the president and shall be exercised by him
either directly or through offices subordinate to him. Article 154
makes a similar provision in respect of the States. However, the
provisions of chapter 1 of Part XIV and their interpretation
 25

36
Ibid, para. 39.
37
Ibid, para. 40.
38
Ibid, para. 42.
 26

by the courts have ensured that the bureaucracy is largely

unaccountable to the public or elected representatives. At the same
time, bureaucracy has no security of tenure in any office, and has
become a plaything of unscrupulous politicians. Similarly, several
constitutional offices have been created with secure tenure and
protection to insulate them from political pressure. However, the
appointment has been left entirely to the discretion of the executive,
thus undermining their impartiality and independence. The
appointments of judges of higher courts has now been practically
usurped by the supreme court, making the whole process incestuous
and unaccountable. Even more worrisome is the fact that removal of
judges of higher courts and certain other constitutional functionaries
following the cumbersome procedure prescribed under Article 124(4)
has become virtually impossible, making them unaccountable. Our
experience in Justice Ramaswamy impeachment case shows that the
parliament is incapable of acting as an impartial court in judging the
conduct of constitutional functionaries.39

Conclusion.

The following conclusions were evident from the above treatise :-

The independence of the judiciary, as opposed to that of the
individual judges, is dependent on the willingness of the popular
branches to refrain from using their ample constitutional powers to
infringe on judicial authority, the enthusiasm wherefor manifests in
the appellate hierarchies capable of restraining if not the judges but
judicial opinion within acceptable bounds inoffensive to other
branches or to avoid strong popular backlash therefor.
Electoral consideration and that of face-saving induce in politicians
the desire to refrain from indulging in overtly adventurous forays into
judicial domain or by setting impeachment standards too low. In other
words if the legislative or executive action is unjustifiable to the
popular sentiment the odds against garnering popular favour thereby
increases manifold.
Political unity, whether temporary, based on isolated issues or that of
a majoritarian government like the Congress at one time, pose
sufficiently high levels of latent threat for the judiciary’s
independence or the judges’ security. Legislative sentiment may be
cattled together under a strong party allegiance or influence, which
can effectively overcome the excruciating standards imposed by the
constitution with respect to impeachment motions in the House.
Report of committees inquiring into conduct of judges should not
be made public in the interests of protection of the dignity of the
institution.
Notwithstanding the right to information act exposure of such reports
shall only serve to create biases and prejudices in the minds of the
people. There is a distinction between transparence and nudity.
The committee convened to look into the matter and a collegium
 27

constituted for the purpose of deciding on the fate of the allegedly

recalcitrant judge should be competent to adjudicate whereafter the
same shall be binding.

39
Jayaprakash Narayan, Indian Constitution - Past Experience and Present Concerns, available at
http://www.loksatta.org/ind%20const.pdf.
 28

Judges as well as others should press that the National Judicial

Commission be set up soon. The names it recommends for
appointment should be accepted without fail – unless the Executive
has very strong evidence to suggest otherwise, evidence and reasons
that it must record in writing and communicate to both the
Commission and the Chief Justice of India. Pending the constitution of
such a Commission, senior judges have to ensure that the
“consultation” that is mandated in regard to appointments and
transfers is real and effective consultation. That is why the Supreme
Court deserves our gratitude for having reversed its judgment in SP
Gupta, the original judgment in the Transfer of Judges case. For by
that judgment the Supreme Court had handed the key to the robber.
 29

List of cases.

People’s Union for Civil Liberties v. Union of India, (2003) 4 SCC 399.
Marbury v. Madison.
Sub-committee on Judicial Accountability v. Union of India, AIR 1992 SC
320. Sarojini Ramaswami v. Union of India, AIR 1992 SC 2219.
Re, A First Grade Pleader, AIR 1931 Mad 422.
Brahma Prakash Sharma v. State of Uttar Pradesh, AIR 1954 SC
10. Supreme Court Advocates-on-Record Association v. Union of
India, (1993) 4 SCC 441.
K. Veeraswami v. Union of India, (1991) 4 SCC 699.
Stephen S. Chandler v. Judicial Council of the Tenth Circuit of the United
States,
398 US 74 (1970).

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ed., Universal Book Traders, Delhi, 1999.
Durga Das Basu, Shorter Constitution of India, 13th ed., Wadhwa,
Nagpur, 2002. Granville Austin, Working a Democratic Constitution :-
A history of the Indian Experience, Oxford, New Delhi, 2002.
K. Mahesh & Biswajit Bhattacharya Eds., Judging the Judges, Gyan
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Martin Shapiro, Courts :- A Comparative and Political Analysis,
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McCormick, Judicial Independence and Judicial Governance in the
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Pamela S. Karlan, “The Two Concepts of Judicial Independence”, Judicial
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 30

http://www.pucl.org/Topics/Law/2005/judges-selection.htm.
 31

Raoul Berger (1974), Impeachment :- The Constitutional Problems,

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