The Supreme Court has described an ideal Judge as the one who lives and behaves like a hermit having no desire or aspiration. The justification behind this life of seclusion is that the Judge should not encounter people, who’s rights and liabilities she/he decides. A Judge should be unbiased and should decide every case before her/him on the principles of law sans being influenced by her/his personal opinion, whatever it may be. Such a Judge is an ideal our Constitution aims for.
However, in reality, we often hear of sitting Judges expressing their personal opinion on contentious political/religious matters, which raises a doubt over their objectivity if they are to adjudicate a case concerning these aspects in future. Recently, two such incidents have been in the news. First, of Justice S.R. Sen from the Meghalaya High Court (‘HC’) showering eulogies on the Prime Minister and second, of Justice Chitambaresh from the Kerala HC making casteist statements and sharing his personal views on reservation. Both these statements have been heavily criticized and there have even been demands to remove these Judges from office.
These incidents raise an interesting question on the legal position when a Judge expresses his personal views on a contentious issue in public. I aim to answer this question in the present post. I shall first discuss the Code of Conduct a Judge in India needs to follow. This shall be followed by a discussion on the legal action that can be taken if the said Code is violated, with a special emphasis on whether a Judge can be removed from office for the same. Thereafter, a detailed discussion on the above-mentioned instances shall be undertaken. In the post, the discussion shall only concern judges of the Constitutional Courts i.e. Supreme Court and High Courts.
[At the outset I wish to state that through this post, I do not wish to criticize the Hon’ble judiciary of India and its Judges. The post is a mere academic discussion. I apologize if anything written in the post, hurts the sentiments of any individual/organization.]
A. Code of Conduct for Judges in India:
Every nation in the world prescribes certain guidelines which its Judges need to follow. Interestingly, the Indian judiciary had no such guidelines for almost 50 years since adopting the Constitution. In 1997, by a Full Court Reference a document called the ‘Restatement of Values of Judicial Life’ was adopted by the Hon’ble Supreme Court (‘SC’). The document lays down sixteen principles which a Judge of the SC/HC had to follow. They are:
- Justice must not merely be done but it must also be seen to be done. The behaviour and conduct of members of the higher judiciary must reaffirm the people’s faith in the impartiality of the judiciary. Accordingly, any act of a judge of the Supreme Court or a high court, whether in official or personal capacity, which erodes the credibility of this perception, has to be avoided.
- A judge should not contest the election to any office of a club, society or other association; further he shall not hold such elective office except in a society or association connected with the law.
- Close association with individual members of the bar, particularly those who practice in the same court, shall be eschewed.
- A judge should not permit any member of his immediate family, such as spouse, son, daughter, son-in-law or daughter-in-law or any other close relative, if a member of the Bar, to appear before him or even be associated in any manner with a cause to be dealt with by him.
- No member of his family, who is a member of the Bar, shall be permitted to use the residence in which the judge actually resides or other facilities for professional work.
- A judge should practice a degree of aloofness consistent with the dignity of his office.
- A judge shall not hear and decide a matter in which a member of his family, a close relation or a friend is concerned.
- A judge shall not enter into public debate or express his views in public on political matters or on matters that are pending or are likely to arise for judicial determination.
- A judge is expected to let his judgments speak for themselves. He shall not give interviews to the media.
- A judge shall not accept gifts or hospitality except from his family, close relations and friends.
- A judge shall not hear and decide a matter in which a company in which he holds shares is concerned unless he has disclosed his interest and no objection to his hearing and deciding the matter is raised.
- A judge shall not speculate in shares, stocks or the like.
- A judge should not engage directly or indirectly in trade or business, either by himself or in association with any other person. (Publication of a legal treatise or any activity in the nature of a hobby shall not be construed as trade or business).
- A judge should not ask for, accept contributions or otherwise actively associate himself with the raising of any fund for any purpose.
- A judge should not seek any financial benefit in the form of a perquisite or privilege attached to his office unless it is clearly available. Any doubt in this behalf must be got resolved and clarified through the Chief Justice.
- Every judge must at all times be conscious that he is under the public gaze and there should be no act or omission by him which is unbecoming of the high office he occupies and the public esteem in which that office is held.
It should be noted that the above principles are merely advisory and there is no sanction against a Judge, for violating them (Indira Jaisingh v. Registrar, Supreme Court of India, W.P. (c) 218 of 2003). The Law Commission in its 195th Report, recommended that a violation of the Code, be termed as an act of misbehavior, however, no action has been taken on the said recommendation. Interestingly, the Bangladesh Supreme Court removed a sitting HC Judge for acts of misbehavior, relying on the above Code [Md. Idrisur Rahman v. Syed Shahidur, 2015 SCC Online Bang. (SCApp) 17].
B. Removal of a Judge in India: Is impeachment the only way?
While discussing the position of Judges in India the Constituent Assembly rightly felt that elevation to the bench does not guarantee righteousness and the Judges could resort to behavior inconsistent with their office. Therefore, the Assembly adopted in the Constitution, provisions for removing a Judge from office.
As per the Constitution, a Judge can be removed only by the process of impeachment. The law on impeachment of Judges in India is provided under Article 124(4)/217(1)(b) read with Judges (Inquiry) Act, 1968 and Judges (Inquiry) Rules, 1969.
For a Judge to be impeached, a motion must be introduced in either houses of the Parliament i.e. Lok Sabha or Rajya Sabha, signed by 100 and 50 members respectively (§ 3). The Speaker/Chairman of the house may accept/reject the motion after considering any material available to her/him or consulting any person she/he deems fit. In 2018, the Chairman of Rajya Sabha refused to accept a motion to impeach Chief Justice Dipak Misra, exercising this very discretion.
Once the motion is admitted, the Speaker/Chairman shall constitute a Committee consisting of a Judge of the SC, a Chief Justice of a HC and a distinguished jurist. The Committee shall frame charges and submit its report to the Speaker/Chairman, who shall lay it before both the Houses. The House shall deliberate on the report and vote for the removal. A Judge can only be impeached if the motion is supported by majority of the total membership of the House i.e. 2/3 members present and voting. If 2/3 members of the House are not present and voting, the motion is automatically defeated, as happened in the case of Justice Ramaswami where 205/542 MPs stayed away from voting.
It should be noted that a Judge can be impeached on two grounds only i.e. proved ‘misbehavior’ or ‘incapacity’. The meaning of these phrases has not been provided in the Constitution or the statutes. Justice Sawant Committee (1992) interpreted the phrase ‘misbehavior’ as any conduct or course of conduct on the part of a Judge which brings dishonor or disrepute to the judiciary and shakes the faith and confidence, which the public reposes on it. Such conduct could also extend to acts done prior to holding the office. ‘Incapacity’ on the other hand means physical or mental incapacity which makes the Judge unfit to hold the office [Sub-Committee on Judicial Accountability v. Union of India, (1991) 4 SCC 699].
C. Need for other forms of sanctions against Judges:
A Judge in India can be removed from office only by impeachment and as discussed above, it is not easy to impeach a sitting Judge in India. In fact, instances where an attempt has been made, the Judge has been accused of grave offences like corruption/misuse of public office. In effect, there exists no remedy for ordinary acts of a Judge which do not amount to good conduct, even if such acts raise questions on the Judge’s integrity and impartiality.
Observing this lacuna in law, Justice Ramaswamy (different from the Ramswami J., discussed before) in C Ravichandra Iyer v. AM Bhattacharjee (1995) 5 SCC 457, observed,
“Every action or omission by a judicial officer in the performance of his duties which is not a good conduct necessarily, may not be misbehaviour indictable by impeachment, but its insidious effect may be pervasive and may produce deleterious effect on the integrity and impartiality of the Judge. Every misbehaviour in juxtaposition to good behaviour, as a constitutional tautology, will not support impeachment but a misbehaviour which is not a good behaviour may be improper conduct not befitting to the standard expected of a Judge….The bad behaviour of one Judge has a rippling effect on the reputation of the judiciary as a whole. When the edifice of judiciary is built heavily on public confidence and respect, the damage by an obstinate Judge would rip apart the entire judicial structure built in the Constitution.”
Recently, the Court in In Re Karnan, called for developing ways wherein actions of a Judge that do not strictly call for impeachment, can be handled [(2017) 7 SCC 1]. The Chief Justice has the power to constitute an in-house committee to investigate such allegations, but the findings of the Committee are not binding and therefore, not effective. In my opinion, sanctions like stoppage of judicial work for a limited time, censuring the remarks, requesting the Judge for retirement etc. can be some of the ways the Chief Justice of India/High Court may consider, against a Judge who indulges in a conduct, unbecoming of her/his office.
D. The present instances: Can sanctions be imposed against the Judges?
Judges have often spoken in public; however, they have been extremely cautious about the content of their speech so as to not express their personal opinion, even inferentially. The words of Justice Sen and Chitambaresh are problematic as they breach this self-restraint.
a. Justice Sen’s remarks:
Justice Sen in a judgment shared his confidence and faith in the Prime Minister in the following words,
“I make it clear that nobody should try to make India as another Islamic country, otherwise it will be a doomsday for India and the world. I am confident that only this government under Shri Narendra Modiji will understand the gravity, and will do the needful as requested above and our chief minister Mamataji will support the national interest in all respect.”
Had the Judge expressed faith in the office of the PM, nothing would be wrong. However, placing faith on the position holder i.e. Mr. Narendra Modi shows the Judge’s implied political preference. Being a High Court Judge, there is a possibility that Justice Sen may have to adjudicate a matter concerning a decision taken by the Modi government. His objectivity in such a situation, shall always be questioned. A similar cloud of doubt prevailed over Justice Bhagwati, once his adulatory letter to Smt. Indira Gandhi, the then PM of India was leaked in the press.
Fortunately, a division bench of the High Court set aside the above judgment, in appeal.
b. Justice Chitambaresh remarks:
Justice Chitambaresh made a statement concerning the reservation and the caste system in India. The Judge speaking at a public gathering remarked,
“Who is a Brahmin? A Brahmin is twice born, because of his poorva janma sukratham [good deeds of his past life]. He has got certain distinct characteristics, clean habits, lofty thinking, sterling character, mostly vegetarian, a love of Carnatic music. All good qualities rolled into one is a Brahmin… It may be noted that a Brahmin is never communal. He loves people, he is always considerate, he is an ahimsa vadi [proponent of non-violence]. He is one who liberally donates for any laudable cause. Such a person should always be at the helm of affairs.”
The remarks of the Judge are problematic as they not only go against the principle of equality enshrined in our Constitution by treating Brahmins as more equal than others, but by also indirectly promoting the outlawed caste system. As a result of the statement, one shall always wonder that while adjudicating matters of reservation, would the judge uphold his oath to the Constitution or let his personal views overpower his judgment.
The remarks of the above Judges are a clear violation of the Code of Conduct which prescribes that a Judge shall not express his views in public on political matters or on matters that are likely to arise for judicial determination. However, as discussed before violation of the Code does not attract any sanction against the Judge, neither are the acts of the Judges so grave to attract impeachment. The only remedy left therefore, is the wisdom of the Chief Justice of India who may issue an internal advisory to the Judges to avoid making such comments in future or avoid placing cases concerning the above issues, in front of the Judges.
As per the current law, the only form of sanction available against a Judge is impeachment. Several bodies including the Court itself have constantly called for introduction of other less extreme measures to check conduct unbecoming of the office of a Judge. The Supreme Court only once in an extremely rare situation stepped in and reprimanded the Judge. However, such a move was the exception and not the norm.
The judiciary has always been a pillar, the citizens have turned to when their rights have been threatened. The citizens of India impose real faith and trust on the judiciary, hoping it to be neutral while deciding disputes before it. The day its Judges cease to follow this neutrality, the edifice the judiciary stands proudly on. shall start coming down.
[The views expressed are personal.]
 Court of Judicature for Rajasthan v. Ramesh Chand Paliwal [(1998) 2 SCC 72].
 Prior to independence, Justice SP Sinha of the Allahabad High Court was impeached by the Governor General of India, under the Government of India Act, 1935 (§ 220(2)(b).
 There have been four unsuccessful attempts of impeachment of Judges in India. First, in 1991 a motion to impeach Justice Ramaswami (SC) was introduced on the count of alleged financial irregularities. Despite the Committee finding the Judge guilty, the motion was defeated as it could not gather the 2/3 support in the Parliament. Second, in 2009 a motion to impeach Justice Sen (Calcutta HC) was introduced on counts of misappropriation of funds. The motion was passed in the Rajya Sabha, however, the Judge resigned before the motion could be voted upon in the Lok Sabha. Third, in 2015 a motion to impeach Justice Pardiwala (Gujarat HC) was moved for his objectionable remarks on the issue of reservation to SC/ST. Before the motion could be accepted, the Judge removed the objectionable remarks from his judgment. Fourth, in 2018, an impeachment motion was brought against the Chief Justice of India Sh. Deepak Misra, which was rejected by the Chairman of the Rajya Sabha.
 The Supreme Court in 2017 for the first time in its history, convicted a sitting HC Judge i.e. Justice Karnan for contempt of Court. The charges against the Judge were of making false allegations against sitting Judges, passing an order imprisoning 7 judges of the SC and several other acts, which went against the dignity attached to his office.