[Ed Note: As part of our New Scholarship Section, we have been inviting discussants to respond to specific articles. This Response Piece is part of a series of posts discussing the public law themed articles featured in the recently released Issue 1 of the 2020 Volume of the Indian Law Review. You can access all the posts in this discussion here. In this piece, Shivaraj Huchhanavar introduces the arguments he makes in his paper titled “Regulatory mechanisms combating judicial corruption and misconduct in India: a critical analysis” that has been published in Issue 1 of the 2020 Volume of the Indian Law Review. You can access the article here.]
As the title implies, the paper attempts a comprehensive critique of regulatory mechanisms dealing with judicial misconduct and corruption in India. The Constitution provides for an accountability mechanism – the removal procedure – for the higher judiciary. Besides, the Supreme Court has also laid down a separate framework known as the ‘in-house procedure’, that also has the remit over the higher judiciary. There is a considerable literature on the ‘removal’ and ‘in-house’ procedures, but comprehensive scrutiny of these procedures, in light of the recent allegations against the Chief Justices of India was due. Conversely, there is a dearth of the literature on vigilance mechanisms which handle complaints against the grassroots judiciary. Particularly, the procedure on filing complaints, conducting inquiries, investigation and disciplinary proceedings, disciplinary measures, review and appeal provisions have not been adequately investigated; therefore, a critical audit of the vigilance mechanism was all the more exigent.
A critical assessment of the regulatory mechanisms
- Mechanisms for the higher judiciary
The constitutional provisions on removal procedure have been designed to produce as little damage as possible to judicial independence, to public confidence in the judicial process and to strengthen the authority of courts for their effective operation (see page 13 of the paper). However, India’s experience, thus far, has been that the procedure is too rigid to be effective; it also fails to address less serious judicial misconduct that falls short of ‘proved misbehaviour’. The recent controversy concerning Justice Deepak Mishra also reveals that unwanted intervention by the Chairman of the Raj Sabha and the intentional neglect of the party in power to inquire into the allegations could further exacerbate the limitations of the removal procedure (see page 22).
One of the main purposes of having an ‘in-house procedure’ for the higher judiciary is to enable the judiciary to act swiftly and decisively when an allegation of misconduct is made against a High Court or Supreme Court judge, without waiting for Parliament to act upon such allegation. But the mechanism, time and again, has failed to live up to the expectations. For instance, an allegation of sexual harassment against Justice Ranjan Gogoi demonstrated that the in-house mechanism is deeply flawed: there is no guidance on the minimum procedure to be followed during the inquiry. In the instant case, the complainant alleged that her request to be represented by a lawyer was turned down, but why should the lawyer’s assistance be denied in a sexual harassment case? If there were justifiable reasons, why was the complainant not informed of them beforehand? The procedure does not oblige the committee to rationalize the procedure it proposes to follow. Also, the in-house procedure lacks transparency (see page 23). The in-house mechanism is CJI centric: if the allegations are against the CJI himself, the in-house procedure remains uninvoked for want of authority of the next senior judges to execute the procedure.
- Mechanisms for the subordinate judiciary
Though every High Court has a vigilance cell, an examination of the rules, procedures, and practices of vigilance cell, however, shows that there is no uniformity (see pages 7-10). This paper also reveals that the vigilance mechanisms lack comprehensive rules on the remit, powers, functions and procedures; the mechanisms lack autonomy – they act, in many High Courts, as per the directions of the Chief Justice and, in some High Courts, as per the directions of the Administrative Committee.
There is no co-ordination among High Courts in dealing with judicial corruption. Many vigilance cells have inadequate infrastructure and staff. Typically, the Registrar (Vigilance), the head of the vigilance cell, is burdened with additional responsibilities of other departments – this has led to inefficiency. Predictably, inquiries conducted by these cells do not proceed expeditiously. Further, like the in-house committees for the high judiciary, the vigilance cells are also opaque and in-accessible – barely anything is known to the public about these cells.
- For the higher judiciary
There is an urgent need to find a suitable alternative to the rigid removal procedure and the informal in-house procedure. The removal procedure, for the purposes of investigation, should include a broad spectrum of the population, representing the executive, the legislature, the Bar, civil society, and within this wider spectrum, the judiciary may have greater representation. The oversight mechanism that replaces the in-house procedure must be an arm’s length institution, having adequate diversity in terms of its composition. The mechanism also should not be judiciary or CJI centric. The investigation procedure must be comprehensively laid down. The mechanism should adequately value transparency and openness. To resist external influences, the procedure must have constitutional safeguards. Therefore, for this purpose, the Constitution may be amended (see pages 36-37).
- For the subordinate judiciary
Comprehensive judicial conduct guidance is needed for both lower and higher judiciaries in India. Besides, a conduct code for court staff is also essential. Likewise, an exhaustive legal framework that defines the remit, powers, functions, procedures and processes of the vigilance mechanisms is the desiderate. The vigilance cells, to be effective, must have adequate autonomy. The cells, in their present avatar, merely act as a facilitator of disciplinary inquiries and proceedings – as a specialised agency – they should have recommendatory powers.
There is an urgent need to strengthen vigilance cells in terms of infrastructure, staff and technical support. Where needed, the High Court should establish District Vigilance Cells. In appropriate cases, there could also be a separate vigilance mechanism for court staff. It is also necessary to have an independent review mechanism. Such a mechanism should hold vigilance cells accountable and also rectify errors.
Enforcing judicial conduct and combating judicial corruption through robust regulatory mechanisms is essential to secure judicial independence, impartiality, and competence. The regulatory frameworks that governs both higher and subordinate judiciaries should be strengthened in terms of their structure, composition, powers, and functions. The mechanisms should also be responsive, transparent, and accountable.
Please see page-5 for the potential limitations of the study.