Far from making any special efforts to clean up the system, the judges seem to have decided to brazen it out. The Supreme Court justified a veil of secrecy over the Karnataka report by declaring on May 9 that the only basis on which the CJI had ordered an in-house inquiry into that scandal six months ago was ‘‘moral or ethical and not in exercise of powers under any law.’’ Dismissing a public interest plea by lawyer Indira Jaising, a bench headed by Justice S Rajendra Babu held that the ‘‘exercise of such power of the Chief Justice of India based on moral authority cannot be made subject matter of a writ petition to disclose a report made to him.’’ The court in denial High Court Scandals The Indian judiciary has had no respite from scandals ever since the police discovered the complicity of high court judges early last year in the Punjab Public Service Commission scam. The then CJI, B N Kirpal asked the then chief justice of the Punjab and Haryana high court A B Saharya to hold an inquiry. But Kirpal took no action on Saharya’s report indicting three high court judges. Meanwhile, Rajasthan threw up the scandal of high court judge Arun Madan propositioning a female doctor in exchange for a judicial favour. Karnataka hit the headlines with another sex scandal in which three high court judges were allegedly provided with women in a Mysore hotel. Kirpal’s successor, G B Pattanaik ordered separate in-house inquiries into the three scandals that erupted in 2002. But other than forcing the resignation of Madan, little came of the inquiries. Delhi high court judge Shameet Mukherjee was, however, quicker in stepping down when his complicity in a corruption and sex scandal was unearthed by the CBI in March 2003. The case created a nationwide sensation as the CBI arrested him. More arrests followed in another case in Punjab last week when the CBI booked two subordinate judges. One of them escaped like a common criminal, striking another blow to the judiciary’s credibility.The judgment shows that the court is actually in denial. Babu’s assertion that the in-house inquiry has no legal authority flies in the face of a landmark judgment delivered by the Supreme Court in 1995 in a case pertaining to Justice A M Bhattacharjee, who resigned as chief justice of the Bombay high court over a suspiciously large royalty he received from a publisher. Invoking its inherent powers under Article 142 of the Constitution, the apex court itself prescribed the in-house procedure of inquiry to enable the judiciary to exercise a measure of self-regulation. Any judgment of the Supreme Court is, as per Article 141 of the Constitution, the law of the land until it is overruled by a higher bench. In a tell-tale omission, Babu made no reference to the Bhattacharjee verdict, which contradicts his claim that the in-house procedure has no legal basis whatsoever. Even otherwise, Justice Babu’s preference for the cover of confidentiality seems untenable because the in-house inquiry was very much meant to serve a public purpose, namely, to determine whether any high court judge was indeed found as alleged in the company of women lawyers in a hotel room in Mysore. The issue concerns a possible abuse of a constitutional office and is therefore a matter of great public importance. Yet, the court simply said: ‘‘If the CJI is satisfied that no further action is called for in the matter, the proceeding is closed.’’ Meaning, the public has to take the Chief Justice’s decision at face value without having a clue to the basis of the exoneration. The legal lacuna Does this kind of opacity not breed more misgivings about the institution? Justice Babu seems to think otherwise as he has, in his six-page judgment, made much of ‘‘the legal lacuna’’ that the only remedy available in a case of judicial misbehaviour is impeachment by Parliament as provided in Articles 124 and 217 of the Constitution in relation to the Supreme Court and high court judges, respectively. If the in-house inquiry report is made public, it will, in Babu’s opinion, ‘‘only lead to more harm than good to the institution as judges would prefer to face (the statutory) inquiry leading to impeachment.’’ This sounds more like an admission that the in-house inquiry report is not rigorous enough to withstand public scrutiny. The Supreme Court’s bid on May 9 to circumscribe judicial accountability contrasts with the alacrity with which Law Minister Arun Jaitley seized the opportunity the same day to introduce a Bill seeking to establish the National Judicial Commission to appoint as well as discipline judges. This is actually the second attempt to create such a Commission. The first was made in 1990 by Dinesh Goswami as law minister of the short-lived V P Singh Government. But the scheme of Jaitley’s Bill owes more to the recommendations made in this regard last year by the Constitution Review Commission headed by former CJI M N Venkatachaliah. The Jaitley Bill But Jaitley did make some departures from Venkatachaliah’s vision, the most important being on the question of disciplinary jurisdiction. The Venkatachaliah panel emphasised that disciplinary powers over judges should be exercised only by fellow judges as the independence of the judiciary would otherwise be in peril. But Jaitley’s Bill provides that the law minister and the eminent citizen nominated by the Prime Minister will participate in disciplinary proceedings as well. This radical proposal has found takers among legal luminaries such as Justice V R Krishna Iyer (see interview). But the Congress party, whose support is critical to pass the Bill (a Constitutional amendment), has so far given mixed signals. The code of ethics The proposed Commission is designed to undo the Supreme Court judgments of 1993 and 1998, commonly called the second and third judges cases, through which the judiciary assumed ‘‘primacy’’ in the matter of judicial appointments. Besides restoring an executive say in judicial appointments, the Commission is meant to draw up a code of ethics for judges. It will then inquire into any violation of the code and decide penalties for the deviant behaviour. Those penalties include withdrawal of all judicial work from the judge concerned or his transfer to another court. If the misconduct is found serious enough to warrant removal, the Commission can ask the Government to initiate impeachment in Parliament. A tainted judge like Shameet Mukherjee is an appointee of the existing judiciary-dominated system. If the judiciary is now in danger of losing its monopoly in appointment matters and coming under the disciplinary jurisdiction of a body including ‘‘outsiders,’’ it has only itself to blame because of all its errors of omission and commission. A chilling reminder of this fact came on May 11, just two days after the introduction of the Bill, when the CBI arrested two members of the subordinate judiciary in a corruption case in Punjab and one of them escaped like a common criminal (see box). The rot is spreading fast, in the lower and higher judiciary. The need for the National Judicial Commission has never been greater.
