Published 09 Apr 2018
It would be myopic to place judicial performance beyond scrutiny as liberty without accountability is freedom for the foolish. Power without responsibility is the antithesis of constitutionalism. Yet no judge has so far been impeached in India.
In 2010, senior lawyer and former law minister Shanti Bhushan asserted, in an affidavit in the Supreme Court, that out of 16 chief justices of India, as many as eight were ‘definitely corrupt’. There was a move to impeach CJI M.M.
Punchhi for acquitting a person on the basis of a compromise in a matter of criminal breach of trust-which is a non-compoundable offence-for allegedly extraneous considerations, but the requisite number of MP signatures could not be procured for the impeachment motion.
Last year, CJI J.S. Khehar too was mired in a controversy over the suicide note of former Arunachal Pradesh chief minister Kalikho Pul. Justice Markandey Katju too had made serious allegations about the extension given to a Madras High Court judge by three CJIs under political pressure from the DMK and UPA.
The ill-conceived, half-hearted and unrealistic move to impeach CJI Dipak Misra on charges that are hard to prove should cue attempts to put in place a system of judicial accountability short of impeachment.
Corruption is a cognisable offence, yet in the Justice K. Veeraswami case (1991), the apex court laid down that no FIR can be filed against a judge without the permission of the CJI.
Although the case was about corruption, the Supreme Court extended protection to all cases. If the allegation of corruption is against a Supreme Court judge, the President could order an investigation in consultation with the CJI.
If the allegation was against the CJI, the President had to consult other judges and act on their advice. In CJI Khehar’s case, since the allegations were not only against him but also against the then President (Pranab Mukherjee), Khehar rightly ordered that the matter be referred to an appropriate bench.
The impeachment process is so time-consuming and tortuous that it practically gives judges immunity. We, therefore, must evolve other mechanisms to evaluate the performance of judges. Judicial accountability promotes at least three discrete values: the rule of law, public confidence in the judiciary, and institutional responsibility.
Many US states have a ‘merit plan’ to evaluate judicial performance. States such as Arizona, California and Utah have Judicial Performance Review Commissions/ Councils. These consist of not only judges and lawyers but also laypersons.
New York and Alaska have systems of evaluation by trained court observers who make unscheduled court visits. Judges are evaluated on their knowledge of law, integrity, sentencing, impartiality etc. Judges must be judged too, and we need mechanisms that enable this.( India Today )