Judges have been in the news of late for acts of moral turpitude. In many ways, this is the logical culmination of the age-old principle that power without accountability corrupts. Non-sub homine sed sub deo et lege (the king is under no man, save under God and the law), wrote Bracton. But it seems the principle does not apply to judges. This reinforces the need to evolve a mechanism to make the higher judiciary accountable. There are instances of the removal of high court judges when the government had the power to do so. For instance, Justice S.P. Sinha of the Allahabad High Court was dismissed at the recommendation of then chief justice of the high court, K.K. Verma, in the pre-Constitution days. Sinha was found guilty of forgery. But it was alleged by many legal luminaries that Sinha was victimised because he was considered anti-Congress. It was to prevent such victimisation that the Constitution conferred absolute protection to judges. But this has proved counterproductive. The apex court itself should come out with a solution as Parliament has failed to do so. In the C. Ravichandran Iyer vs Justice A.M. Bhattarjee, a two-judge bench of the Supreme Court ruled that an in-house procedure would provide some forum to examine the allegations made against a high court or a Supreme Court judge. But doubts were expressed even then about its efficacy as it depended solely on how the chief justice of India reacted. Secondly, it does not provide any solution if the chief justice himself is accused of misconduct. The apex court has fortified the position of judges further by ruling that no investigation would be made against a judge without the CJI’s prior approval. It is ironical indeed that the Supreme Court has continued to protect even those judges who have come under a cloud on the ground that the person dispensing justice must not be under the shadow of fear. Yet it has done nothing to ensure that these dispensers of justice do not fall from their lofty heights. Extraordinary punishment was given to police officials in Gujarat when a judge of a lower court was handcuffed. Shouldn’t judges also be awarded extraordinary punishment if they indulge in wrong-doing? In the Mahabharata we have the example of the Brahmin getting the maximum punishment and the Shudra the minimum for the same offence because Brahmins were considered enlightened people. German jurist Rudolf Von Jhering observed in his Law as a Means to an End: ‘‘The entire success of administration of justice depends ultimately upon two requisite conditions in the person of the judge. One is intellectual in its nature; the necessary knowledge must be his and the requisite readiness in its application.The second is moral in its nature, and a matter of character; he must have a necessary firmness of will and moral courage to maintain the law without being led astray by considerations of any kind, by hate or friendship, sympathy or fear.’’
