The judiciary is the custodian of constitutional rights. It has the plenary responsibility to uphold accountability and standards of ethical behaviour.
Can the Supreme Court of India sanction judges and lawyers?
The answer is mostly complex. The Supreme Court has the substantial disciplinary powers over lawyers as per the Advocates Act of 1961.
However, its disciplinary powers over judges are constrained under the Constitution of India protecting the independence of the judiciary. In this article we will discuss the rules, constraints, case law and suggestions for reform of disciplinary actions against judges and lawyers in India.
Why Is It So Hard to Discipline Judges in India?
1. Constitutional Safeguards Protecting Judicial Independence
The Constitution is highly focused on the independence of the judiciary for protecting it against any kind of political pressure. Here is why:
- Article 121: Does not allow discussion of the conduct of a judge which is outside the process of impeachment in Parliament.
- Article 211: It has the same provisions in the state legislatures.
For example, consider a situation in which a judge misbehaves indiscriminately and unethically in a highly publicized case, without the authority of direct action on the part of any party, there is virtually no recourse for litigants or the public.
2. The Impeachment Process An Uphill Battle
Under Article 124(4), judges can only be removed through impeachment. This process requires:
- A majority of total membership of both Houses of Parliament
- Two-thirds of members present and voting
This high bar ensures judges’ independence but makes it nearly impossible to remove them for anything less than serious misconduct. In fact, no Supreme Court judge has ever been impeached, despite five attempts.
The standard, “proved misbehaviour or incapacity”, sets an exceptionally high bar.
3. Misbehaviour What Does it Mean?
The term “misbehaviour” in the context of impeachment standards is rather specific. It covers acts of great severity, like being corrupt, dishonest, or being morally bankrupt in ways that constitute misconduct. Minor misbehaviour may not fall into that category.
The Process of Removing a Judge: A Step-by-Step Overview
When the behaviour of a judge raises any concerns, the procedure of the removal is strict, protracted, and open which guarantees fairness and independence.
- The procedure starts with a motion by 100 Lok Sabha members or 50 Rajya Sabha members. The Speaker or Chairman of Parliament will consider the motion with signed declarations from the parliament members. Again, it demonstrates how serious Parliament takes such conduct.
- Once the motion is entertained, there will be a three-member investigative committee consisting of a judge from the Supreme Court, a Chief Justice of a High Court, and a respected jurist. This is to provide fairness as well as transparency in sensitive allegations.
- If the committee finds that the judge is guilty of any kind of misconduct, the next step is to take the motion to Parliament for the voting process. If both Houses approve with the special majority, the President then issues an order for removal.
How Judges Are Disciplined: Alternatives to Impeachment
Since the impeachment process is almost impossible to achieve, there are several internal mechanisms used to ensure judicial discipline.
1. Judicial Action for Contempt
The Supreme Court has acted against judges for contempt of court, a rare but significant power.
2. Transfers Moving Judges Around
The Collegium System, a group of five senior judges, including the CJI, has the power to transfer High Court judges. This tool is sometimes used to maintain judicial discipline.
3. The In-House Inquiry System: Internal Accountability
The CJI can mostly set up the internal committee for the investigation of complaints against the judges.
- The CJI seeks comments from the concerned Chief Justice
- A 3-member committee (2 Chief Justices and 1 High Court judge) conducts a high-level inquiry.
If the judge is found to be guilty, they may be advised to resign or they can even withdraw from their judicial duties.
4. Resignation or Censure
If misconduct is proven but is not severe enough to warrant removal, the CJI can advise the judge to either resign voluntarily or retire. In some cases, the Chief Justice of the concerned High Court may stop assigning judicial work to the judge.
Key Case Laws Against Lawyers
1. Vinay Chandra Mishra (1995): The Supreme Court suspended Mishra’s license due to allegations of contempt of court. This particular case shows as to how the Court regulates its ethical behaviour of members in the legal domain.
2. R.K. Anand v. Delhi High Court (2009): The Court confirmed the imposition of disciplinary measures on the lawyers who attempted to persuade a witness to testify against the party. The case shows how unethical conduct of one person has a spillover effect on the whole justice.
What Reforms Could Improve Judicial Discipline in India?
- National Judicial Council (NJC): Resurrecting the Judges (Inquiry) Bill, 2006 for setting up a National Judicial Council would give rise to a mechanism through which a judge could be complained about and complaints could be investigated.
- Judicial Oversight Committee: Resurrecting the Judicial Standards and Accountability Bill, 2010 might create a National Judicial Oversight Committee to assist the process of accountability and the transparency issue.
- Asset Transparency: The practice of public asset declarations might help reduce corruption risks and simultaneously contribute a lot of transparency to the judiciary.
Conclusion
As a result, a National Judicial Council, a public code of conduct, and procedural transparency are the vital elements to maintain the proper equilibrium between judicial independence and public trust in an accountable judiciary. Ultimately, public confidence in the judiciary stems not just from the independence of the judges, but also from the judge’s readiness to be accountable or answerable to the people they are meant to serve.
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FAQs
1. Do the Supreme Court has power to remove a judge?
The Supreme Court do not have the power to remove judges, the judge can be removed is through impeachment in Parliament by the special majority which is a very complicated process.
2. What has the Supreme Court done about judges’ misconduct?
The Supreme Court deals with judicial misconduct internally in most cases, through investigation, or transfers, or even censure. In relatively rare cases, if a judge is impeached by Parliament by a special majority, the judge can then be simply removed from office.
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