The challenge of holding judges accountable 

Justice Shekhar Kumar Yadav's biased speech against Muslims highlights the challenges in holding higher judiciary judges accountable in India.

A speech delivered by Justice Shekhar Kumar Yadav of the Allahabad High Court, that made apparent his biases against the Muslim community, at an event organised by the legal cell of the Vishwa Hindu Parishad within the Court precincts on December 8, has once again spotlighted the difficulty in India’s review mechanism to hold judges of the higher judiciary accountable.

The review mechanism requires “proved misbehaviour or incapacity” to be decided by a three-member committee set up under the Judges (Inquiry) Act, 1968. This committee functions like a trial court, but is set in motion only after a successful attempt to impeach the concerned judge is moved either in the Lok Sabha or the Rajya Sabha, which must be approved by the presiding officer of the House — the Speaker in the case of the Lok Sabha, or the Vice-President/Chairman in case of the Rajya Sabha. The provisions for this mechanism flows from Articles 124 (4), (5), 217, and 218 of the Constitution of India, and the those of the Judges (Inquiry) Act, 1968.

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Only two judges out of seven so far, aside from Justice Yadav against whom impeachment has been attempted, have been found guilty for their “misbehaviour” by the three-member committee, which must comprise of a Supreme Court judge, a Chief Justice of a High Court and an eminent jurist.

The first was retired Supreme Court Justice V. Ramaswami, who was found guilty of extravagant spending on his official residence such as buying air conditioners, plush furniture and bedding, without following due process, much like the accusations made against Trinamool Congress MP Mahua Moitra by the ruling BJP last year. While such misdemeanours by current accounts of corruption seem like an arcane quibble over propriety, they nevertheless animated public discourse on a judge’s conduct in the late 80s and early 90s. Such discussions led to the foundation of the ‘Restatement of Values of Judicial Life’ adopted by the Supreme Court on May 7, 1997, as the code of conduct for those holding high offices in judiciary.

Speaking to The Hindu, retired Madras High Court Justice K. Chandru, who played a pivotal role in the impeachment proceedings against Justice Ramaswami, recollected how the judge “bought 6+1 = 7 maces, one with a silver head to denote the Chief Justice’s arrival and took it on a cargo plane in 1988, and not by rail,” following his elevation as the Chief Justice of the Punjab and Haryana High Court. “There was no tendering process that was followed for the purchase of the maces,” Justice Chandru added. He was referring to the colonial practice followed at the Madras HC where an orderly precedes a judge, to signal his arrival to ensure those in the hallway and the courthouse “maintain decorum”. Justice Ramaswami deemed it fit to continue this practice at the Punjab and Haryana High Court, which did not have this practice as it was founded in independent India, much to the shock of his “brother judges”. In his Tamil book, I too became a judge, Justice Chandru recalled a letter dated August 18, 1988, in which then Chief Justice V. Ramaswami’s colleagues wrote “You will remember that most of us told you later too that we are opposed to the introduction of maces. Maces are but a relic of the imperial past and out of tune with our socialistic pattern of society.”

The adverse verdict by the three-member panel constituted under the Judges Inquiry Act against V. Ramaswami set the precedent of then CJI Sabyasachi Mukherjee deciding not to allocate any work to him in 1993. The failure of the impeachment motion in the Lok Sabha that year, did not lead to a reversal of the CJI’s decision. No cases were listed for hearing before Justice Ramaswami’s Bench until his retirement three years later.