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The letter written by the Chief Justice of India (CJI) to the Prime Minister seeking his intervention in initiating impeachment proceedings against asitting judge of Calcutta High Court, has triggered a debate again regarding corruption in higher judiciary and its impunity. We have seen removal of governments and Prime Ministers so many times, butremoval of High Court and Supreme Court judges has not been so far heardafter the Constitution of India came into force in 1950.Independent India has, however, witnessed one impeachment, when Justice Shiv Prasad Sinha of Allahabad High Court was removed by the then GovernorGeneral of India, C Rajagopalachari in 1949 on the recommendation of theFederal Court. The Chief Justice has given detailed information about Justice Sen's misconduct when he was appointed receiver by Justice AN Roy in Steel Authority of India versus Shipping Corporation of India case in 1993. The three-Judge panel comprising Madras High Court Chief Justice AP Shah, MP High Court Chief Justice AK Patnaik and Rajasthan High Court Chief Justice RM Lodha inquired into the charges leveled against Justice Sen and foundthem true. The panel submitted its report in February, 2008। On March 16, theCollegiums of the apex court comprising of Chief Justice BN Agarwal andJustice Asok Bhan asked Justice Sen either to resign or to opt for voluntaryretirement।However, with Justice Sen deciding not to comply with either of the twooptions, the Chief Justice was forced to resort to this unprecedented move।The move is unprecedented, because neither there is any provision in theconstitution about such recommendation nor before this, any Chief Justicehas taken such 'extreme step'.In fact Article 124(4) of Indian Constitution provides for removal of HighCourt and Supreme Court Judges.The Article says: "A judge of Supreme Court shall not be removed from hisoffice except by an order of the President passed after an address by eachHouse of Parliament supported by a majority of the total number ofmembership of that House and by a majority of not less than two-thirds ofthe members of that House present and voting has been presented to thePresident in the same session for such removal on the ground of provedmisbehaviour or incapacity."There is no separate provision for removal of High Court judges and Article217(1)(b) provides for this and says, "A judge may be removed from hisoffice by the President in the manner provided in clause(4) of Article 124for the removal of a judge of the Supreme Court."The processes of removal of High Court and Supreme Court judges are thesame. The above Article of the Constitution provides for impeachment,whereas; Judges (Inquiry) Act, 1968 determines the process of impeachment.According to this Act, the impeachment of a judge can be done only byParliament and impeachment can be initiated after a motion addressed to thePresident of India is signed by at least 100 members of the Lok sabha or 50members of Rajya Sabha.Such is the process and such is the impunity. Such Judicial impunity hasbeen conferred on Judiciary for the sake of its independence.The above provision is similar to the rule prevailing in England, since theAct of Settlement, 1701, to the effect that though judges of the superiorcourts are appointed by the Crown, they do not hold office during hispleasure, but hold their office on good behaviour and the Crown may removethem based on a joint address from both the Houses of Parliament.Any way the credit must be given to Chief Justice, who could take suchextra-ordinary step, because after all, extra-ordinary situation demandsextra-ordinary steps.But unfortunately, the government was sitting over it as it was written twomonths ago and could only be known to public through media.Before any debate on this issue, it should be clearly borne in mind thatabove cumbersome procedure of impeachment and other judicial impunities havebeen enshrined in the Constitution for making Judiciary independent.*Independence of Judiciary*The independence is guaranteed in our Constitution and the concept has beenborrowed from the US Constitution. Article III of US Constitution guaranteesIndependence and Supremacy of Judiciary in the US.Independence of Judiciary is the tenet of democracy and therefore, evenRussian Constitution of 1993 (Chapter-7 Section 120-122) also guaranteesindependence of Judiciary in the country.In fact section 124 of the Russian Constitution says, "Judges shall possesimmunity and criminal proceedings may not be brought against a Judge exceptas provided for by federal law."In India, this independence and limited Judicial Supremacy are enshrined inthe Constitution and are expressed in the methods of appointment of judges;the process of impeachment; and the power of judicial review.Now, if all these provisions of the Constitution are analysed, inference caneasily be drawn that the problems lay here themselves and so do solutions.*The Appointment Rules*Articles 124 and 217 provide for appointment of Judges of Supreme Court andHigh Court respectively. They clearly stipulate that the appointments haveto be made by the President in consultation with the Chief Justice.The word 'consultation' has been always a matter of dissent and controversy.In fact, when AN Ray was appointed as Chief Justice after superseding threesenior Judges namely Hegde, Grover and Shelat, there was uproar in Judicialcommunity including the Bar council of the apex court.They argued that judges have been superseded owing to their judgement inKeshavanand case (AIR 1973 Supreme Court) which went against the government.Gradually the direction of Executive in matters of appointment of judgesstarted diminishing. In 1993, a land mark judgment came from Supreme Courtin 'Advocates on record versus Union of India' case.The apex court ruled that the recommendations for appointment of Judges inHigh Court and Supreme Court will be made by collegiums of three Judges andshall be in a way binding on the government.After a 'presidential reference', the number in the collegiums was increasedfrom three to five.This judgment was a landmark because it took virtually all discretionarypowers of the Executive in matters of appointment of judges in higherjudiciary. Thus, the word 'consultation' became 'concurrence'.Some people in legal domain argue that it was a dangerous development andwas against the principles of the Constitution itself. How can a person or agroup of persons appoint themselves which goes against the ideas enshrinedin Article 311?They opine that there must be a transparent and justifiable procedure forsuch appointments. There are instances where persons from one family arebecoming Judges for two to three generations.The judicial community of higher Judiciary is becoming an elite club of few'privileged families'. Candidly, it is not what 'independence' meant for.*The Impeachment*The process of impeachment as discussed in the article above, clearlyindicates that it is a cumbersome process. No wonder then, not a singlejudge could be removed in India since 1949.It may be recalled that in 1991, the impeachment proceedings for removal ofJustice V Ramaswami fell flat on its face after members of the Congressparty decided to abstain from voting.The process of impeachment is laid down in Judges (Inquiry) Act, 1968 whichsays that even if the motion is accepted, the presiding officer of the Househas to constitute a three judge committee to further inquire into thematter.The process suggests that the motion will be put to voting once again afterthe submission of the report by the Judges' Committee. However, unlike inthe case of a no confidence motion against a government, which requires asimple majority to survive, the impeachment motion against a judge requiresa two-third majority.That is why, it is truly said that it is easier to decide the fate of 100billion people by way of forming and toppling Governments in India thanremoving a Judge in the country.It is also but strange that the country which has seen many a ministers andbureaucrats being convicted on charges of corruption does not have a singleincidence of a judge being impeached.The 'Transparency International' in its report of 2007 has counted judiciaryas the third most corrupt institutions in India, an inference totally incontrary to the common perception that instances of corruption in higherjudiciary are not unheard of.The former CJI Y K Sabarwal himself is in the eyes of storm for hisjudgement pronounced in the 'Delhi Sealing Case', which allegedly benefitedhis son. When a report in this regard appeared in one Newspaper, a suo mottocontempt proceeding was initiated and the concerned reporter was sought tobe punished.The Contempt of Court Act, 1971, which itself is not yet codified, isanother tool which sometimes is used to gauge the voice of dissent.In another infamous case, the vigilance department of UP Police exposedmisappropriation of funds worth Rs 23 crore from the GPF account of ClassIII and IV employees of Ghaziabad Civil Court.One of the accused arrested in this connection, made startling revelationthat he has parted the money both in cash and kind, with one sitting Judgeof SC, ten Judges of HC and 23 Judges of lower courts.The investigation is not proceeding as Police cannot interrogate judgeswithout the consent of SC, though such protections are not given in Judges(Inquiry) Act. The matter is still pending with the apex court and the CJIhas to convince the nation, whether there is equality before the law or not.Not to forget the matter of the two Haryana High Court Judges whose nameshave figured in a case in which a law officer from Haryana has alleged tohave sent Rs 15 lakh to them. The Matter has been referred to CBI by theapex court.The list is long and result is dismally naught. And while one may agree thatit is easy preaching than done, the question being asked by common citizenis that who will judge the judges?*The Remedies*. The provisions of RTI should be made applicable to all components offunctioning of Judiciary. Accordingly, suitable amendments in RTI Act, 2005can be made॥ The procedure of selection of Judges should be made more transparentand justifiable. Panel of judges can be made well in advance beforerecommendation and be known to public by way of websites or media॥ Idea of setting up of a National Judicial Commission can also be madeinto reality, after all if you are required to go for a test for becoming aclerk, why does selection of judges not require any test. An all India testmight also be conducted to select judges of higher judiciary॥ The Government is sitting over the Judges (inquiry) bill, 2006 for morethan two years, therefore it should be passed, but before that necessaryamendments are required, because the concept of 'brother judges' doinginquiry has proved ineffective if not futile॥ The contempt of Court Act, 1971 should be suitably amended, becausehealthy criticism of any institution is generally beneficial for the systemitself in the long run. The Judiciary should prepare itself for listening toits criticism and bring about change by itself, a change though painful buthelpful.
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