Critical analysis of Power of High Court over Judicial Officers

Critical analysis of Power of High Court over Judicial Officers in the Context of Nagaland judiciary. 

“There is a Higher Court, than Court of Justice and that is the Court of Conscience, it supersedes all other Courts” Mahatma Gandhi:

Supreme Court on several occasions has declared “No Soft paddling towards Indiscipline Judicial Officers, and the High Courts, as the custodian of Judicial officers have axed many a Judicial officers in disciplinary proceedings without any mercy. Charges in Disciplinary proceedings before the Inquiry Officer against any Judicial Officers may take different forms such as:-

  1. Flouted the mandate of Law envisaged under the Laws
  2. Exceeded Jurisdictions by disposing cases without Jurisdictions
  3. Abuse of Judicial Power
  4. Misconduct
  5. Failure to maintain Judicial Discipline, propriety, transparency and integrity in discharge of Official Duty.
  6. Flouting of Rule 3 of CCSCR 1964 and State Judicial  Services Rules.
  7. Bias and Malice in rendering Judgments.
  8. Bribes and Corruptions

The main issue in disciplinary proceedings will be whether ingredients falls within the meaning of “Misconduct, Failure to maintain Judicial Discipline, propriety, transparency and integrity in discharge of Official Duty and unbecoming of a Judicial Officer under CCSCR 1964 and State Judicial  Services Rules”

CCSCR 1964.

In General

(1) Every Government servant shall at all times--

(i) maintain absolute integrity;

(ii) maintain devotion to duty; and

(iii) do nothing which is unbecoming of a Government servant.

(IV) commit himself to and uphold the supremacy of the Constitution and democraticvalues;

(v) defend and uphold the sovereignty and integrity of India, the security of the State, public order, decency and morality;

(vi) maintain high ethical standards and honesty;

(vii) maintain political neutrality;

(viii) promote the principles of merit, fairness and impartiality in the discharge of duties;

(ix) maintain accountability and transparency;

(x) maintain responsiveness to the public, particularly to the weaker section;

(xi) maintain courtesy and good behaviour with the public;

(xii) take decisions solely in public interest and use or cause to use public resources efficiently, effectively and economically;

(xiii) declare any private interests relating to his public duties and take steps to resolve any conflicts in a way that protects the public interest;

(xiv) not place himself under any financial or other obligations to any individual or organisation which may influence him in the performance of his official duties;

(xv) not misuse his position as civil servant and not take decisions in order to derive financial or material benefits for himself, his family or his friends;

(xvi) make choices, take decisions and make recommendations on merit alone;

(xvii) act with fairness and impartiality and not discriminate against anyone, particularly the poor and the under-privileged sections of society;

(xviii) refrain from doing anything which is or may be contrary to any law, rules, regulations and established practices;

(xix) maintain discipline in the discharge of his duties and be liable to implement the lawful orders duly communicated to him;

(xx) maintain confidentiality in the performance of his official duties as required by any laws for the time being in force, particularly with regard to information, disclosure of which may prejudicially affect the sovereignty and integrity of India, the security of the State, strategic, scientific or economic interests of the State, friendly relation with foreign countries or lead to incitement of an offence or illegal or unlawful gain to any person;

(xxi) perform and discharge his duties with the highest degree of professionalism and dedication to the best of his abilities.

(2) (i) Every Government servant holding a supervisory post shall take all possible steps to ensure the integrity and devotion to duty of all Government servants for the time being under his control and authority;

23(ii) No Government servant shall, in the performance of his official duties, or in the exercise of powers conferred on him, act otherwise than in his best judgement  except when he is acting under the direction of his official superior;

(iii) The direction of the official superior shall ordinarily be in writing. Oral direction to subordinates shall be avoided, as far as possible. Where the issue of oral direction becomes unavoidable, the official superior shall confirm it in writing immediately thereafter;

(iv) A Government servant who has received oral direction from his official superior shall seek confirmation of the same in writing as early as possible, whereupon it shall be the duty of the official superior to confirm the direction in writing.

Explanation I.- A Government servant who habitually fails to perform the task assigned to him within the time set for the purpose and with the quality of performance expected to him shall be deemed to be lacking in devotion to duty within the meaning the cause (ii) of sub-rule (1).

Explanation II.- Nothing in clause (ii) of sub-rule (2) shall be construed as empowering a Government servant to evade his responsibilities by seeking instructions from, or approval of, a superior officer or authority when such instructions are not necessary under the scheme of distribution of powers and responsibilities.

State Judicial Services Rules in General may be as follows:-

Rule of Conduct.                                         

A judicial officer appointed under the Rules shall be required to maintain the integrity and conduct himself in conformity with the dignity of the office he holds. He should follow the code of conduct as provided in Appendix-A

APPENDIX-A, B and C etc.

In General.

(1) Should uphold the integrity and independence of Judiciary:-

An independent and honourable judiciary is indispensable to justice in our society. A judge should participate in establishing, maintaining of conduct so that the integrity and independence of the judiciary may be preserved. A judge should always be aware that the judicial systems is for the benefit of the litigant and the public, and not the judiciary. The provisions of this chapter should be construed and applied to further these objectives.

(2) Should avoid impropriety:-

(i) Public confidence in the judiciary is eroded by irresponsible or improper conduct by judges. A judge must avoid all impropriety and appearance of impropriety. A judge must be expected to be the subject of constant public scrutiny. A judge must, therefore, accept restrictions on conduct that might be viewed as burdensome by the ordinary citizen and do so free and willingly.

(ii)A judge shall respect and observe the Law at all times, the conduct and manner of a judge should promote public confidence in the integrity and impartiality of the judiciary. Without regard to a person’s race, gender, or other protected personal characteristic, a judge should treat every person fairly, with courtesy and respect.

But both the rules are only in general terms and more or less in the form  of exhortation only, as the rules are not followed by any prescribed penal or punitive provisions for violation of those Misconducts, and even if it is proved no penalty can be imposed unless there is culpable negligence different from carelessness inadvertence or omission or even violation of law in exercise of power in good faith.

Misconduct means, Violation of anyone of the Code of conduct and norms expected of a judge may be construed as 'misconduct'. It means conduct unbecoming of a judge.

Judicial Ethics means, Ethics are principles of right, acceptable good conduct expected from a judge. The difference between code of conduct and ethics is that the the code is laid down written rules whereas the judicial ethics are unwritten rules of judicial conduct followed in social life and judicial ethics. There are sanctions for immoral conduct in a society. Similarly, judges bear the good or bad consequences for their acts as prescribed and not following judicial ethics.

Thus there cannot be any universal Misconduct for which every act of civil servants can be imputed with Misconduct fit for dismissal in disciplinary proceedings, as Misconduct can take different colours and from these colours of the act of the delinquent officer the Disciplinary Authority has to act on Misconduct of a delinquent officer, fit for Disciplinary proceedings, followed by any punitive action as deem fit.

A perusal of the statement of imputations annexed along with the charge-sheet must demonstrate that the case of the delinquent officer, is that by having committed an error of law it amounts to Misconduct and unbecoming of a judicial officer. But on the face of it, judicial officer’s  conduct may not constitute any kinds of corruption/bribe or even a favor as required to sustain a charge of misconduct unbecoming of a judicial officer. In other words, even committing an error of law does not amount to corruption/bribe or even a favour to a particular party in the lis, which is the sine qua non for the maintainability of the charge-sheet.

Here, I would like to refer the recent classic observation of Supreme Court Judges, by Justice  Dr.D.Y.Chandrachud, sitting with the Chief Justice T.S.Thakur, in a judgment pronounced against a Judicial Officer on 12th July 2016

“A robust common sense must guide the disciplinary authority. At one end of the spectrum are those cases where direct evidence of a misdemeanour is avamisdemeanorence in regard to the existence of an incriminating trail must be carefully scrutinized to determine whether an act of misconduct is established on the basis of legally acceptable evidence. Yet in other cases, direct evidence of a decision being actuated by a corrupt motive may not be available. The issue which arises in such cases is whether there are circumstances from which an inference that extraneous considerations have actuated a judicial officer can legitimately be drawn. Such an inference cannot obviously be drawn merely from a hypothesis that a decision is erroneous. A wrong decision can yet be a bona fide error of judgment. Inadvertence is consistent with an honest error of judgment.”

In H.H.B. Gill v R AIR 1948 PC 128 it was held that a judge neither acts nor purports to act as a judge in receiving a bribe, though the judgment which he delivers may be such an act.

As reported in (1993) 24 ATC 1, Supreme Court  held that an officer who exercised judicial or quasi judicial powers act negligently or recklessly or in order to confer undue favour on a person is not acting as a judge. The Supreme Court was not concerned with the correctness or legality of the decision, but on the conduct of the officer in discharge of his duties as an officer.

And also as reported in 2000 SCC (L&S)144, Supreme Court held as follows "Dishonesty is the stark antithesis of judicial probity. Any instance 'of a High Court condoning or compromising with a dishonest deed of one of its officers would only be contributing to erosion of the judicial foundation. The judiciary has to be reminded itself every hour that it floats only over the confidence of the people in its probity. Such confidence is the foundation on which the pillars of the judiciary are built. The judges, at whatever level they may be, represent the State and its authority, unlike the bureaucracy or the members of other service. Judicial service is not merely an employment nor the judges mere employees. They exercise sovereign judicial power. They are holders of public officers of great trust and responsibility. If a judicial officer "tips the scales of justice its rippling effect be disastrous and deleterious" A dishonest judicial personage is an oxymoron".

Again as reported in 2007 4 MLJ 1055, Supreme Court held that D.P can be initiated only on stronger grounds of suspicion of bonafides and orders passed on malice, bias or illegality. There must be prima facie material to show recklessness or misconduct or undue favour to a party. It was held" Fearlessness and maintenance of judicial independence are very essential for an efficacious judicial system. Making adverse comments against subordinate officers and subjecting them to severe disciplinary proceeding would ultimately harm the judicial system at the grassroots level"

The supreme court also in a number of cases held that while exercising judicial/quasi judicial function if the officer takes the decision pursuant to corrupt or improper motive disciplinary action would lie on the following ground:-

i. “Where the officer had acted in a manner as would reflect on his reputation for integrity or good faith or devotion to duty;

ii) if there is prima facie material to show recklessness or misconduct in the discharge of his duty;

iii) if he had acted in a manner which is unbecoming of a Government servant;

iv) if he had acted negligently or that he omitted the prescribed conditions which are essential for the exercise of the statutory powers;

v) if he had acted in order to unduly favour a party;

vi) if he had been actuated by corrupt motive, however small the bribe may be because

Lord Coke said long ago" though the bribe may be small, yet the fault is great."  The Supreme court however; observed a word of caution holding that each case will depend upon the facts and no absolute rule can be postulated.

Consider this, if each and every act of commission or omission of a judicial officer is made a ground of Misconduct unbecoming of a judicial officer, it will adversely affect the function of judiciary, as the judicial officer will be scared with the legality of their orders and the function of judiciary will come to a standstill.

As cautioned by Supreme Court Judges, Justice  Dr.D.Y.Chandrachud, siting with the Chief Justice T.S.Thakur, in a judgment pronounced against a Judicial Officer on 12th July 2016, The issue which arises in such cases is whether there are circumstances from which an inference that extraneous considerations have actuated a judicial officer can legitimately be drawn. Such an inference cannot obviously be drawn merely from a hypothesis that a decision is erroneous. A wrong decision can yet be a bona fide error of judgment. Inadvertence is consistent with an honest error of judgment.”

Now in the context of a State Like Nagaland, Section 1 of the Criminal Procedure Code, and Section 1 of the CPC, bars the application of the provisions of the two codes except in spirit. Question thus arises, what does it mean by application of laws in spirit of the two codes? Does it mean we can touch it softly and tenderly on the surface only and not clutched it or with full vigour? “And of course, this reminds us of the sonnet “Beauty is to see not to touch, if to touch not to crush”. Way back in 1967 Supreme Court declared that application of the Codes shall be in spirit only and this has been obediently honoured by the Government of Nagaland with Notification dated 17th November 1988, “Similarly if it is consider necessary to extend certain sections of the Criminal procedure code, prior approval of the cabinet may be taken before a notification to this effect is issued”. This legal position has been clarified by the Honb’le Gauhati High Court in the case of Registrar General Gauhati High Court Vs Union of India in 2013: it is regretted that it was the bounden duty of Nagaland Bar Association or the Nagaland Judicial Officer’s Association to file such petition, but instead it was taken up by the Registrar General, perhaps they could not wait for us to act, in any case I am so grateful that Registrar has acted on behalf of us all, keeping the issue alive for our own benefit and to wake up to the stark reality.

Question is, how the High court will exercise the power of disciplining the judicial officer, when there is no Discipline In Law itself, like Lord Denning’s Book Discipline in Law. Readers may share their views and opinion in the forum, for the benefit of Nagaland Judiciary, which will be highly appreciated.

 

N.K.Assumi 
on 06 June 2017
Published in Constitutional Law
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