“LORD Woolf cannot quite make up his mind whether he is a liberal reformer or the shop steward for the only trade union in the country whose members wear wigs and not hardhats or cloth caps,” The Times (London) remarked in 2004 of the lord chief justice. If such a comment were made in India, judges would be foaming at the mouth.

It is, however, true that they have been operating as trade unionists whenever their own interests and powers are involved. Take the case of chief justice Ranjan Gogoi. He was accused of sexual harassment by a supreme court staffer shortly before his retirement last year. His reaction was bizarre, reflecting sheer panic.

He set up a special three-member bench to address the issue. Worse still, he presided over this bench, shamelessly flouting the age-old maxim that no man shall be judge in his own cause. He presided over a special sitting of the bench on a court holiday. He alleged a conspiracy to destabilise the institution itself.

No man shall be judge in his own cause.

Thereafter, an ‘in-house panel’ — an animal unknown to the law — was set up to probe the matter and whether an inquiry was called for. The complainant was denied the services of a lawyer. She walked out of the inquiry that was so obviously and shamefully a farce; a kangaroo court. To no one’s surprise, this bogus panel exonerated Gogoi. She was suspended, but reinstated not long after his retirement.

The point is simple. Sexual harassment is a criminal offence under the law. The proper course was a police complaint, an FIR, a thorough probe and, if a prima facie case is revealed, a prosecution in a court of law. The in-house panel has no statutory backing. But the court has gone further.

In a case involving a judge of the Madras High Court, K. Veeraswami, accused of possessing assets disproportionate to known sources of income, the court ruled that no criminal case shall be registered under Section 154 of CrPC against a judge of the higher and superior judiciary, unless the chief justice is consulted, whose views must be given due regard by the government. If he does not think the case is fit to proceed, it shall not be registered.

“If the chief justice of India himself is the person against whom the allegations of criminal misconduct are received, the ­government shall consult any other judge or judges of the supreme court. There shall be similar consultation at the stage of examining the question of granting ­sanction for prosecution and it shall be ­necessary and appropriate that the ­question of sanction be guided by and in accordance with the advice of the chief ­justice of India. Accordingly, the directions shall go to the government.”

In no other court in a democracy do judges enjoy such a protection from accountability to the law. The police are as entitled to probe into a complaint against a judge as anyone else.

As A.V. Dicey wrote, “[E]very official, from the prime minister down to a constable or a collector of taxes, is under the same responsibility for every act done without legal justification as any other citizen. The reports abound with cases in which officials have been brought before the courts, and made, in their personal capacity, liable to punishment, or to the payment of damages, for acts done in their official character but in excess of their lawful authority. A colonial governor, a secretary of state, a military officer and all subordinates, though carrying out the commands of their official superiors, are as responsible for any act which the law does not authorise as is any private and unofficial person.”

There is another obstacle: impeachment. The framers of India’s constitution sinned wilfully. One supported it on the ground of prestige alone, ie you cannot have judges tried by a tribunal as if he was an officer. But impeachment is a political process. Even if a committee of judges returns a finding of guilt, the motion of the judge’s removal from office has to be passed in parliament and then by a special majority. It is obsolete.

Justice V. Ramaswamy escaped removal despite being found guilty by a committee of judges set up by law. Prime minister P.V. Narasimha Rao had an oral whip issued for the judge’s protection. Under the government of India Act, 1935, a high court judge could be removed only by a judicial process: an inquiry by the federal court. One Allahabad High Court judge was so removed after a full and fair trial. His judgements betrayed his corruption. The device of impeachment, far from serving as a check, serves as a protection to the corrupt.

Also, there should be a body charged with inquiring into offences that do not deserve removal but censure or cut in salary, eg if a judge joins a seedy club, delivers an improper speech or dabbles in politics. An example is the Canadian Judicial Council set up under a statute. It can censure as well as recommend removal of a judge.

The writer is an author and lawyer based in Mumbai.

Published in Dawn, December 19th, 2020