Simon Rifkind, a well-known American jurist, once said: “The courtroom, sooner or later, becomes the image of the judge. It will rise or fall to the level of the judge who presides over it.” Therefore, the image of the judge is so fundamental for the institution. In the words of American lawyer and academic Alan Dershowitz, “(the) judges are the weakest link in our system, and they are also the most protected”.
The country now debates the level of protection that the Chief Justice can have. In the Veeraswami case (1991), the Supreme Court said that “the judges are liable to be dealt with just the same way as any other person in respect of criminal offence”. But the Veeraswami verdict also held that the consent of the Chief Justice of India (CJI) is required to register a First Information Report (FIR) against a judge of the High Court or the Supreme Court. If the accusation
is against the CJI, permission by “any other judge or judges of the Supreme Court” is needed.
The apex court is in deep crisis. Rather than the affidavit filed by the woman alleging sexual misconduct, it is the way in which it was dealt with that tarnished the image of the institution. A committee consisting of only judges enquired into the matter as per the in-house procedure evolved by the court. The proceedings were secret and so was the outcome. The reasons for the clean sheet to the CJI still remain unknown.
Equality before law and equal protection of the law are constitutional imperatives as evident from Article 14. Rule of law within the judiciary is a condition precedent for that outside. A constitutional court has to set an example for constitutional morality in every facet of its functioning. It needs to evolve a credible and efficacious method to deal with critical situation that should satisfy the constitutional test and the requirements of natural justice. The in-house mechanism and the Veeraswami methodology are far from satisfactory in this regard.
A few lawyers, however, supported the in-house procedure as one in tune with the law on the point. Because the members of the committee are Supreme Court judges, they say the procedures are fault free and unquestionable. They say that secrecy is the rule and openness is not even the exception. No legal representation; no access to the findings; no questions and no criticism. They presume that the court could act like an “imperium in imperio” as lamented by
T T Krishnamachari long ago, during the Constituent Assembly debates. They were, no doubt, defending the indefensible. No democracy can sustain itself by converting the public offices into theatres. We need to be wise enough to learn the empirical lessons on the issue, from elsewhere. When Brett Kavanaugh was nominated as an associate judge of the Supreme Court of the US in 2018, allegations of sexual harassment were raised by a woman professor, Christine Blasey Ford. The alleged incident, according to Ford, occurred in 1982 when both of them were studying in high school. After Ford, two other women also raised allegations of sexual misconduct against Kavanaugh. A probe by independent agencies followed, the records of which are in public domain even now. Ultimately, on 6 October 2018, Kavanaugh’s nomination was confirmed by a thin majority in the Senate.
In an earlier episode, before the US Senate Committee, Anita Hill, a lawyer, publicly deposed about the alleged sexual harassment by Clarence Thomas, whose elevation as a judge of the top court in the US was pending consideration. The complaint was dismissed after an open Senate hearing.
Accusations against sitting judges have occurred in other jurisdictions. Sir Stephen Richards, a judge of the Court of Appeal in the UK, was arrested and prosecuted for the alleged offence of bad conduct with women while travelling in train. In one case he was tried by Westminster Magistrates’ Court and acquitted. In another case, prosecution was dropped. Samuel Kent, a federal court judge in the US, was accused of sexual misconduct and lying to the investigators. He was convicted. He had to resign after facing an impeachment.
Such incidents had an ostensible effect of enhancing the credibility of the judiciary in these countries. The episodes illustrated that the judges too are governed by the law of the nation.
The in-house procedure in India is not one made by legislation. It is a self-regulatory device adopted by the Supreme Court in 1999. There is no empirical evidence to indicate its capacity to render justice to the aggrieved. No judge in the country was ever subjected to any serious action by such a mechanism, even though there were at least a few accusations.
Who will judge the judges is a fundamental question of Indian democracy. We need to address it. A constitutional mechanism to deal with judicial misbehaviour and the crimes committed by the judges needs to be designed by way of a comprehensive legislation. This needs to be done without compromising judicial independence and also by adhering to the equality principles. The law of the country does not and cannot create immunity to the persons holding high constitutional posts, who actually are the servants of the people and not their masters.
Lawyer practising in the Supreme Court