The judiciary is weakened by the very act of publication when legal remedies are not accessed. When that happens, ‘We the People’ are the losers.

Andhra Pradesh CM has stirred a hornet’s nest by writing to the Chief Justice of India complaining about a Supreme Court judge for allegedly influencing posting of cases in the State High Court. The alleged Judge is slated to be the next Chief Justice of India, and some judges of the AP High Court has opened the proverbial can of worms. This has led to a tricky situation.

Confronting the judiciary: With alleged Misconduct

He alleged that some High Court judges are hostile to his government and are deliberately striking down his regime’s decisions and orders.
In effect, he has accused many judges of misconduct, corruption and political bias.
Such an open conflict between the judiciary and a Chief Minister is without precedent.
In view of the above, the CM urged the CJI to consider initiating steps to ensure that the State’s judicial neutrality was maintained.

How are allegations of misconduct against judges dealt with?

The Constitution protects the independence of judges of the High Courts and the Supreme Court by making them removable only through a long process of impeachment.
However, not all forms of misconduct will warrant impeachment. There could be other kinds of impropriety too.
There are times when serious complaints of this sort are received, and the Chief Justice of India (CJI) is called upon to examine them.
Since 1997, judges have adopted an ‘in-house procedure’ for inquiring into such charges.

Handling the complaint

The complaint by the Andhra Pradesh Chief Minister will have to be examined by the CJI from the perspective of whether it can be rejected as baseless, or it requires a deeper investigation.
In details annexed to his letter, the CM has cited several writ petitions in which adverse orders were passed against his regime.
Therefore, a key question would be: do the charges pertain merely to the merits of judicial orders, or are they serious enough to warrant a probe?

Consequences of this Letter

(1) Impacts on Democratic Functioning

The confrontation and mistrust between two the organs of the state are not conducive for the smooth working of democracy.

(2) Politicization of Judiciary

The serious accusation by a sitting CM brings out to the foreground the weakness of Judiciary. Similar kind of charges might be levelled by opposition parties when it comes to power. All this leads to the undue politicization of the sacrosanct Judiciary.

(3) Scandalization of the Courts

Every judgement delivered the judges involved in this controversy will be questioned which is not good even from Institutional perspective. Such type of allegations and counter allegation will create doubts in minds of Public about the ability to get justice from formal system.

(4) Surpassing the limited propriety

The limits of propriety are being stretched, as the allegations have taken distinctly political overtones. It is disturbing enough that some judicial orders are seen in a political light, or lend themselves to such an interpretation. It becomes quite ominous if these charges give rise to open threats and abuse.

(5) Unclear charges

The problem is that allegations of possible judicial bias, which are difficult to establish, are combined with those of misconduct, a serious charge. Regardless of what happens, it may end the recriminations. India can ill-afford a public perception that judges have strong political loyalties.

(6) Public disclosure has led to media trials

The letter and its public disclosure have somehow compromised the dignity and independence of the apex court. This has also interfered with administration of justice and scandalized the court in the eyes of the people by sensationalizing the issue.

(7) A case for constitutional impropriety

Article 121 and Article 211 of the Constitution expressly bar the Parliament and State Legislatures to discuss the conduct of any Judge. The Constitution confers such immunity having regard to the onerous responsibility of judges in discharging constitutional functions. However, it is subject to a decision by the CJI on the touchstone of the applicable contempt laws in the country.

(8) A bigger dilemma

This case is not just about accused judge or the charges levelled against him and his judgements. It is equally about the duty and responsibility of CJI to stand like a shield not only to safeguard the honour and reputation of a brother judge but also to protect the institutional integrity of the highest forum of justice in the land.

A trial of the Judiciary itself

The Supreme Court has not been immune to serious blows and allegations from within and without. The institution has been more fragile ever since the press conference addressed by four former judges.
There is a rise in personal attacks through the captive or the social media which can be a devastating weapon of disinformation against a judge who cannot mount a counterattack on the same platform.
Their aim, more often than not, is not to point out flawed judgments or administrative failures, but rather to weaken the judiciary and bend it to their own narrow interests.
The attacks have snowballed during the last six years. The courts, strong and invincible as they may look from the outside, have preferred caution rather than aggressive responses.

Why Judiciary must probe the case?

Whether the writing to CJI is in itself wrongdoing or is making it public an act of contempt of the court — may differ. But, the more important question is whether the CJI should examine the matter or just dump it. Here are the five reasons for the CJI to take a serious look into the matter.

(1) Credibility of the Institution

The credibility of the institution of judiciary is of paramount importance. Involved persons are mortals and temporary. But, the institutions are permanent.

(2) Maintaining the Public faith

An open hearing is the character of the adjudication process. Whether the CM’s decision to make his letter to the CJI public is acceptable or not is a different debate altogether. That doesn’t mean his complaint loses its relevance and the obligation of the Supreme Court to inquire into it is annulled.

(3) Every case isn’t an attack on Judiciary

The complaint should not be treated as an attack on the judiciary, as he categorically named the judges in his letter to the CJI. The Constitution of India has envisaged action against judges for judicial ‘misconduct’, according to Article 124(4).

(4) There exists an established mechanism

The Supreme Court announced a mechanism in 2015 for receiving and considering complaints against judges. Any person can complain against the judges. A three-member committee must be constituted. This committee can either reject the complaint; or may recommend to the Parliament to initiate proceedings of impeachment if the contents of the complaint are of very serious nature.

(5) Upholding the Constitution

The judiciary draws its powers from the Constitution and magnificence from the unflinching faith of the people. The CM is a Constitutional Head vested with specific powers and responsibilities. He holds an important constitutional position and that in itself is the basis of the complaint. The CJI should give importance to what was said in the complaint rather than who lodged it.

(6)Test of the grievance redressal mechanism

How the CJI & SC is going to handle this case will set a precedent to deal with the misconduct of Judges in future. If the process is not robust, fair & transparent then the calls for greater executive control on Judiciary will increase to the scale of the pre-NJAC verdict.

The solutions do not lie in token one-rupee fines but in balanced and calibrated action.

Way forward

Since we all have a vested interest in an independent and impartial judiciary, for that effective remedies for judicial misbehaviour must be found.

It is nobody’s case that the judiciary is immune from the investigation into misbehaviour and misconduct, the question is who has the power and the authority to investigate serious misconduct by a sitting judge.
Misbehaviour by judges is too serious an issue to experiment with. It needs clear mechanisms of accountability to the general public.
The right thing would probably be for the honourable CJI to order an inquiry into the letter in accordance with the apex court’s internal procedure.
Opportunistic attacks on the judiciary must be discouraged. On the other hand, effective remedies for judicial misbehaviour must be found, for which the impeachment is one of the option to consider.
In a longer run, the judiciary, civil society and the political class must come together on a common platform to devise a systematic approach in which adhocism; favouritism and impunity are kept at an arm’s length.
There is a need for lawful creation of an arrangement and structure which are fair, impartial, just, constitutional, and safeguard the separation of powers.

Conclusion

Aspersions and allegations against them ought not to be made lightly for sensationalism without substantive and positive evidence. Nothing short of the faith of the people in the judiciary and the rule of law is at stake.
A fair, independent judiciary whose integrity is unimpeachable is the bedrock of the Indian democracy, and the CJI must save it by taking up this issue. With the spirit of everyone is equal before the law.
The Judiciary owes it to its own institutional history to keep its unblemished character supreme and its dignity sacrosanct, as it is an exemplar of democratic values.