Confrontation is Not the Best Way to Deal With the Danger of Judicial Misconduct

Do we really want a scenario where sitting judges are ordering investigations against their fellow judges?

Supreme Court. Credit: PTI

Supreme Court. Credit: PTI

A lot has been said and written in the last week on the crisis at the Supreme Court of India after a petition was filed before it by the Campaign for Judicial Accountability & Reform (CJAR) demanding a court-monitored investigation into the Chief Justice of India (CJI). The petitioners justified their request on the grounds that the Central Bureau of Investigation (CBI) had registered a criminal case and arrested certain people who had allegedly convinced certain litigants that they could “manage” their case, being heard by a bench headed by the CJI.

While most of the criticism has been directed against the conduct of the judges, it is perhaps also time to speak about the petitioners, their brinksmanship and how they almost opened the door to sitting judges ordering investigations against other sitting judges, in a country where judges already appoint each other.

The CJAR and its role

The CJAR has for long led a fire and brimstone campaign against corruption, lack of transparency and other assorted ills plaguing the higher levels of the Indian judiciary. Thanks partially to the CJAR’s efforts, it is now possible to at least discuss the issue of corruption publicly.

This is a far cry from the days when certain elements in the higher judiciary would initiate contempt proceedings against anybody who publicly spoke about corruption in the higher judiciary. For example, in 2001, a constitution bench of the Delhi high court found Madhu Trehan and her colleagues guilty of contempt of court for publishing the results of a survey amongst senior advocates on their perceptions of the judges of the high court. Certain judges ranked low on integrity in the survey and that was enough for the high court to furiously order the Delhi police to seize all copies of the magazine from newsstands and gag the press from reporting on the proceedings.

Another infamous order of the Delhi high court, from 2007, convicted journalists from the Mid-Day for publishing a cartoon lampooning the former CJI Y.K. Sabharwal over allegations of corruption in the Delhi sealing cases. It took ten years for the Supreme Court to overturn that conviction.

In this climate of judicial intimidation, to take up the cause of corruption in the higher judiciary takes a certain amount of courage and for that CJAR must be saluted for its efforts. The organisation’s tactics, however, leave much to be desired. For instance, the brinkmanship demonstrated by the CJAR in this latest confrontation with the Supreme Court was both opportunistic and irresponsible.

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Opportunistic because their petition alleges that the CBI, as a government-controlled agency, could not be trusted to conduct an independent probe, but they have absolutely no problem depending on the FIR filed by the CBI – the very agency they don’t trust – to demand a SIT against the CJI, when his name isn’t even mentioned in the FIR.

The CJAR’s confrontationist stance could also be deemed irresponsible because the petition was filed with no regard to the precedent that it would set for future allegations of judicial misconduct on the bench. In a country where judges are already appointing judges, do we really want a scenario where sitting judges are ordering investigations against their fellow judges? How can the judiciary function as a stable institution if judges worry over being hauled up by their fellow judges merely on the basis of a claim made by some middlemen to an investigating agency which has in the past been accused of driving public servants to commit suicide, along with their family members, in cases of corruption?

Does the CJAR truly want to open the door to high court judges ordering investigations against each other? After all, isn’t this one of the reasons Justice C.S. Karnan was sent to jail – because he was ordering investigations against other judges with no regard for the law.

Prashant Bhushan of the CJAR. Credit: Youtube

Prashant Bhushan of the CJAR. Credit: YouTube

The Judge’s Inquiry Act, 1968 and the Veeraswami case

Like most countries, India treats judges as a separate category of individuals for the purpose of being investigated for misconduct or crimes under the law. The reason for this differential treatment is that given their role of adjudicating contentious disputes and acting as a check on abuse of powers by the government, judges are likely to be the target of retaliatory allegations from either losing parties or the government. This is the reason why parliament enacted the Judiciary (Inquiry) Act, 1968 laying down a special procedure to investigate judges. Under this law, the speakers of either house of parliament can trigger an investigation against judges if and only if they receive the requisite number of signatures – at least 100 members in the case of Lok Sabha and 50 members in the case of the Rajya Sabha. In addition, the Supreme Court itself has held in the Veeraswami case that judges can be investigated by the executive under the Prevention of Corruption Act provided that the CJI gives permission to register an FIR, and if the CJI himself was under investigation, it would have to be another judge of the Supreme Court.

Also read: Prashant Bhushan on the CJI’s ‘Extraordinary Interest’ in a Matter Directly Concerning Himself

The CJAR may not like the law above, but that is no reason to push the Supreme Court to ignore parliamentary law. If it doesn’t like the law, it can campaign to change the law, but to ignore the law and force the Supreme Court to investigate its own is a prescription for destabilising institutions.

Corruption and middle-class activism

Given its past activism, the CJAR more than likely knew of both procedures but chose to ignore them in pursuit of its anti-corruption crusade. We have seen shades of this anarchist style of activism in the India Against Corruption (IAC) movement, where Arvind Kejriwal and the Bhushans demanded the enactment of a Lokpal Act that would completely centralise powers with one authority that would be mythically incorruptible and far removed from democratic control. In which version of democracy does the state vest police powers in the hands of an institution not under the democratic control of elected representatives?

What is it about corruption that pushes organisations like CJAR and the IAC to engage in politics of brinksmanship? Democracies around the world face corruption to differing extents – that is not sufficient reason to demand solutions that are authoritarian or with the potential to destabilise existing democratic institutions. Arbitrariness and utter disregard for the law is not an antidote to corruption.

Public-spirited activism comes with its share of responsibility and the CJAR needs to learn to play within the rules rather than use its strategies to provoke headline-grabbing constitutional crises.

As for the Supreme Court, one only hopes that this episode has reminded it of the importance of following to the letter procedural laws laid down by parliament, rather than dismissing it as ‘the handmaiden of justice’ that can be ignored according to the whims and fancy of judges.

Prashant Reddy T. is an Assistant Professor at NALSAR University of Law.

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