The recent controversial hate speech by Justice Shekhar Kumar Yadav of the Allahabad High Court deserves to be deprecated in the strongest terms. He made open and disparaging comments against minorities. He mistook constitutional democracy for conventional democracy and spoke as if communal majoritarianism is synonymous to democracy. The oath under the third schedule of the Constitution obliges him to uphold the integrity of India and perform his duties “without fear or favour, affection or ill-will” and also “uphold the Constitution and laws”.
The text of his speech clearly negates the solemn affirmation in the oath he has taken. Thus, the nation was confronted with a scenario where a judge of a constitutional court discarded the values of the fundamental law in public. That the Chief Justice Sanjeev Khanna acted in time and called for a report on the incident is a matter of solace. Justice Yadav has also been summoned to appear before the collegium of judges at the Supreme Court.
More than an aberration by an individual judge, the incident reflects an unhealthy trend among some judges to lean towards political power centres. For them, personal agenda prevails over their assigned constitutional role. The Congress era also showed a series of such shameless abandonment of judicial constituencies in search of political or other positions. Contemporary India, too, has her bad apples.
The quality of independence of the judiciary has a close linkage with the quality of democracy. The present day’s deterioration of democracies across the world is often facilitated by courts as well, as David Landau and Rosalind Dixon demonstrated in their paper ‘Abusive Judicial Review: Courts Against Democracy’ (2020). In Anatomy of the State, even the right-wing liberal thinker Murray Rothbard endorsed the view of professor Charles Black who believed judicial review often supplies “ideological legitimacy” to executive actions. In his controversial work The Politics of the Judiciary (1977), J A G Griffith opined “[judicial] impartiality is a sham” and tried to expose the myth of the court being totally independent.
Thus, doctrinally, independence of the judiciary is a contested concept. It requires a great element of effort and the highest level of integrity on the robed class to disassociate from the possible mischiefs of the political executive of the day. The judiciary, being “the least dangerous branch” as Alexander Hamilton put it, should be vigilant enough to uphold its identity.
This line of thinking led to the consolidation of certain notions about the way in which judges should conduct themselves. The Bangalore Principles of Judicial Conduct was an effort that got global recognition at a round table meeting at The Hague in 2002. It enlisted judicial values like independence, impartiality, integrity, equality, competence and diligence to be upheld by individual judges in their personal and professional life. “The behaviour of the judge is the bastion for people to reap the fruits of democracy, liberty and justice,” said the Supreme Court in the Ravichandran Iyer case (1995).
In 1997, the Supreme Court formulated a code on ‘restatement of judicial values’ that, among other things, said judges should avoid actions that erode public confidence in the impartiality of the judiciary. It called for an enlightened detachment consistent with the dignity of the judicial office. It also asked judges to keep away from public debates and interdicted them from expressing political views. The code warned that judges are under public scrutiny, and they should not behave in a manner unbecoming of their position.
Justice Yadav’s speech breached the code in letter and spirit. A move for his impeachment, in all probability, would fail for want of numbers. It is impossible to imagine lawmakers in India rising above party lines to uphold the constitutional ethos. The UP chief minister’s public support for him has its own implications.
Therefore, the only available way to deal with Justice Yadav is to invoke the ‘in-house procedure’ evolved by the SC in 1997 to deal with erring judges of the high benches. It’s true that the procedure is opaque and, in effect, chief-justice-centric. At the end of the day, if the errant judge does not accept the ‘advice’ to resign or retire voluntarily, it is only possible to keep him away from judicial work. It is an irony that in India, the removal of a judge of a constitutional court remains the prerogative of the legislative majority.
It is therefore time to address the issue of judicial misbehaviour in India at a larger level. To deal with aberrations on the bench, Justice Krishna Iyer pleaded for “a panel of legal activists who have concern for equal justice”, to be set up by the bar associations.
This idealism of the yesteryears cannot tackle today’s reality, where there are political and other divisions within the legal fraternity that do not necessarily reflect constitutional solidarity. Very often, some sitting judges attend functions organised by groups with political or religious affiliations; many lawyers’ associations also are often not free from such affinities. This creates a vicious circle that offers no immediate solution to the recurring aberrations on the bench. Therefore, the action of the top court and the chief justice in the instant issue becomes significant. It should go beyond a mere reprimand, now reportedly given.
The track record of the in-house procedure has not been satisfactory when it dealt with allegations against some of the judges, including chief justices, in the past. Veteran lawyer, the late T R Andhyarujina, had publicly lamented that “the accountability mechanisms (of the higher judiciary), particularly in disciplining judges of superior court … (has) not matched with its power and esteem”. Yet, efforts for democratising the courts and the people’s demand for them should continue.
The Supreme Court should come up with clear regulations on the topic, restricting the perverse conduct of judges in the higher judiciary. Also, judges should be prohibited from entering politics during their tenure. Their post-retirement rehabilitation should also be totally banned, which in turn should compel lawmakers to alter some of the existing laws.
(Views are personal)
(kaleeswaramraj@gmail.com)
Kaleeswaram Raj | Lawyer, Supreme Court of India