Judging the judges: Understanding independence and accountability as all eyes on SC

The question that really goes to the heart of the matter is where to draw the line between accountability and independence?
Published June 4, 2020

If a judge of the superior court has allegedly violated any law, is it a fit case for the Supreme Judicial Council (SJC) to enquire into his misconduct or must the SJC wait for the law to take its own course? Many questions come to mind. For example, can their lordships be tried like us? But why not? If my lords can be handed over a ticket for over speeding, why can’t the Federal Board of Revenue proceed against them if they haven’t filed their returns properly? But then, can a judge be tried for money laundering? How can the executive be given a license to prosecute judges; what if they are then persecuted on account of ulterior motives? Isn’t executive the largest litigant who has its own ball before the superior courts every day? What if a baseless finding is given against a judge? In that case, can he approach a court of law and then, how can a lower court independently decide such a case?

Looking at the example of India, we find that permission of the Chief Justice of India (CJI) is required before a judge can be charged for corruption, but why just the chief justice? What if he doesn't like the judge? After all, independence of judiciary also envisages independence from your own colleagues as well.

Ahron Barrack in his book "judge in a democracy" states with utmost conviction that "a judge has no master except the law" and whilst most unlawful actions may be termed as misconduct, when both are surely separate, why can't they be tried separately? But how can they be tried separately when the code of conduct issued by SJC warrants "that a judge must at all times remain blameless"? Shouldn’t then the SJC be exclusively competent to enquire into all such aspects? But on what basis must the president form his opinion when no one else but only the SJC can conduct the enquiry? All these are some of the most captivating questions which have arisen out of the 184(3) proceedings filed by a sitting judge of the SC before the apex court and in a way also against the court (on account of allegations against SJC members). Simply put, it is the "the Supreme Court on trial" and all eyes are on it. The court is conscious of the fact that it has to maintain a higher threshold; how otherwise would one satisfy the public when they ask "who will watch the watchman?"

The question that really goes to the heart of the matter is where to draw the line between accountability and independence? Impeachment is the only method for removal of superior court judges embraced by some of the most developed countries in the world, including USA, Japan, UK Canada, Australia, India and other common law countries. It requires two separate trials, a factual trial by a body invariably comprising of experts including sitting or retired judges and thereafter a political question is tried by the legislature which requires a 2/3rd majority of total members present in most of these countries.

For instance, in India, five separate steps are required; at least 100 members from Loksabha or 50 from Rajiyasabha are required to initiate a motion, and if the chairman approves, he then sends it to a committee of three members (any sitting judge of the SC, retired judge of the SC, chief justice of any state) which he constitutes in consultation with CJI. In the event that the committee unanimously finds the judge guilty only then the matter proceeds for the trial on the political question, and at least a majority of total membership of both the houses and 2/3rd of the total members present is required for the motion to succeed. As if the protection was not enough, the Indian SC continues to reserve the power of judicial review even after the process is over.

So much for independence of judiciary? Layers over layers, walls within walls and fort within forts. People may curiously ask why one organ of the state is excessively protected? The answer to this would only satisfy them once they understand that all those layers are not for the judges and what is impenetrable is not the judge but their own lis before the court.

Independence of judiciary is not for the judge but for the one who is judged. Would you ever lodge a complaint before a judge if you knew he was weak? When a litigant knocks on the door of the court, he believes that there is some higher authority which can fearlessly redress his grievance and whip the executive? But what if the executive could also whip the judge back? What would be the point of going to a fragile court if judges were themselves living in glasshouses which could be shattered by barely throwing stones at them. This is precisely why judges must be answerable to no one else but the SJC. But what basis can the SJC proceed with a complaint when no one else can even collect material against a judge and why should anyone surreptitiously snoop into the life of a judge when one cannot even spy against an ordinary citizen? No justice for the justices? These are some of the more difficult questions to answer.

Peter W. Hogg in his 5th edition of constitutional law of Canada considers judicial dependence as the worst form of "tyranny". It is for this reason that most countries have consciously protected judiciary from the executive’s reach. It can neither initiate nor has any role in the process of impeachment but merely to act as a post office.

Have we done enough to protect the faith of litigants then? Some might be quick to argue that "accountability by no one else but your own peers" ensures unparalleled independence of judiciary but then history corrects us; those who suspended Justice (retired) Iftikhar Chaudhry were also his own colleagues and perhaps all junior to him. Also, under Article 209, the president can single-handedly direct the SJC to initiate an enquiry or the SJC can do it on its own and be done with it. As opposed to the multifarious layers of protection inbuilt in the process of impeachment, we rely solely on the notion of "trial by your own colleagues". There’s an obvious void and thanks to the top court for stepping in and becoming the ultimate shield.

When must the apex court intervene though? Only when proceedings are tainted with malice or rather on ordinary grounds of judicial review? It would all be for nothing if one has to prove "malafides" in order to challenge a reference since you can hardly ever meet that threshold. Conversely, recourse to the Supreme Court on ordinary grounds of judicial review will open floodgates and virtually render SJC proceedings subject to an NOC from the SC in every single case. Either way, the choice is not without consequences. The former jeopardises the independence of judiciary and the latter makes accountability an unrealistic task. How do we achieve both? One can leave it to the legal wizards and their lordships wisdom.

The writer is a Barrister-at-law.