The mirage of Judicial accountability- Myth or Reality?

Justice Karnan

1. Good lot of a lawyers and Judges will begin their 30 days’ vacation. When the courts reopen, Justice Mr Karnan of Calcutta High court will have retired in peace with full pension. After he retires  what will happen to the contempt proceedings initiated by the Supreme Court?. After all Justice Mr Karnan’s propensity for further judicial mischief will no more be a serious problem. One can never rule out the possibility of Justice Mr Karnan presiding  over judicial commissions or enjoying a post retirement sinecure as a Tribunal Judge somewhere. In all fairness, one must concede that Justice Mr Karnan is not accused of any act of corruption or nepotism. However, his action as a Madras High Court Judge after he was transferred to Calcutta and his reaction as Calcutta High-court Judge  after he received the Bailable warrant from the Supreme Court of India clearly demonstrate that the person concerned had totally missed the most elementary principle of natural justice namely nobody can be a judge in their own cause.

2. It will be interesting to see whether Justice Mr Karnan will get his post retirement benefits and pension. Assuming that the Supreme Court convicts him for contempt, under the Contempt of Courts Act, normally, even a conviction for Contempt of courts does not involve moral turpitude. Hence, it is possible to argue that even a future conviction for contempt should not disqualify  Justice Mr Karnan from receiving  his full pensionary benefits. Nevertheless, it makes litigants and lawyers  uncomfortable to know that there are Judges who do not either know or intentionally disregard well established principles of law. Can the Justice Administrative System afford such further aberrations?

 

Justice Veeraswamy

3. It is said that people who forget history are condemned to repeat it. In fact Justice Mr K. Veeraswami was the Chief Justice of Madras High court. A case for possession of assets disproportionate to his known sources of income was filed against him. Despite the availability of credible evidence against him, the Supreme Court in 1991 held that no criminal case against a Sitting High Court Judge can be filed  without the sanction of  the Chief Justice of India. He was allowed to retire with full pension. Soon after,  a law office within 100m of Madras High Court carried his name along with his former designation notwithstanding the convention and the constitutional bar prohibiting him from practising law in the territories where he officiated as a permanent High Court Judge. Of course, Mr Veeraswamy was from a right community that had substantial political and judicial clout. He ensured that his son in law, Mr Justice V Ramasamy was first appointed as a Judge of Madras High court who  subsequently earned his elevation to  Supreme court as well.

4.  In many ways, Justice Mr Ramaswamy’s case was a trendsetter that resulted in the first impeachment proceedings in the Indian parliament. Three member Judicial Committee headed by Justice P.V Sawant of Supreme Court found him prima facie guilty of serious criminal acts. The Committee framed 14 definite charges against Justice  Ramaswamy amounting to a) wilful and gross misuse of office. (b) wilful and persistent failure or negligence in discharge of duties (c) habitual extravagances at the cost of public execute having moral turpitude (d) Using public funds for private purposes and bringing high judicial office into disrepute. After complying with the due process of law, the Three Member Committee found him guilty of most of the charges and recommended impeachment. The Congress party led by P.V Narasimha Rao , ably assisted by Mr P Chidambaram, a distinguished lawyer on his own right ensured that Justice Mr V Ramaswamy got away despite the commission of many criminal offences. Soon after the impeachment was defeated in the parliament, several words were heard in the Madras High Court compound to the effect that Mr. P Chidambaram duly returned many of the undeserving favours he received from the two judges, father in law and son in law.

Justice Ramaswamy

5.Thereafter again India witnessed criminal misconducts by High court judges. Justice Mr Bhattacharya (originally from Calcutta High Court ) when he was the Chief Justice of Bombay High Court faced lot of questions about his judicial conduct and the money he received for his published books.  Mr Bhattacharya resigned and enjoyed peaceful retirement with full pensionary benefits. People have happily forgotten this judicial indiscretion.

6. In between, in 1996 Justice Mr Ajit Sen Gupta who granted exparte interim orders of arrests of  smugglers having links with Mumbai underworld was arrested for FEMA violations after his retirement. But he also must have  received his full pension and all retirement benefit. Subsequently between 1990-2000, Justice AM Ahmadi and Justice AS Anand both  Chief Justice of India, faced allegations of Judicial misconduct and nothing came out of it. In fact even a 3 Judicial Fact Finding Committee that normally precedes the initiation of impeachment proceedings, was not constituted.

7. Thereafter Parliament witnessed 2 impeachment proceedings. One against Justice Mr Dinakaran of Madras High court who was later promoted as the Chief Justice of Karnataka High Court. After  protests by the Bangalore Bar Association and a  sitting judge of time, he was transferred to the High court of Sikkim. However he was not as lucky as his other Tamilnadu counterparts. He probably thought that no harm can befall Judges for their acts of indiscretion or even criminal acts when it was not committed in their judicial capacity. In fact, he felt he was unreasonably singled out because he was a member of downtrodden community of humble origin.

8. .The allegations against him was that he indulged in land grabbing and falsification of records. A three-member Committee held him guilty. BJP, Congress and even the Left front demonstrated their rare political unanimity. He was the first judge in the post independent India to be impeached. It will be interesting to see whether his post retirement benefits were paid and that whether any orders on his entitlement to pension were passed by the appropriate authorities..

9.  More or less  at  same time , impeachment proceedings were initiated against a Calcutta High Court Justice Mr Soumitra Sen. After a 3 member judicial committee held him guilty of temporary misappropriation  of a deposit made in the Calcutta High Court, he received the best possible legal advice from the very distinguished lawyer Somnath Chatterji. In Fact Mr Somnath Chatterji, (a senior advocate, lifetime Marxist who felt that his constitutional obligations as a speaker of the Indian Parliament overrode his ideological commitment to Marxism)  defended the Justice Mr Soumitra Sen before the 3 member panel. The  Rajya Sabha even passed his impeachment motion .

Justice Mr Soumitra Sen

But before the Lok Sabha could confirm the   impeachment motion, Justice Soumitra Sen resigned. Hence the impeachment proceeding became infructuous. By this smart move he not only avoided the ignoinimity of being removed from the post but also made sure that he will get his full retirement benefits including a life long pension. [Ironically, even today the average Indian has more faith in judges in comparison with politicians and bureaucrats. That is a myth!! Before it explodes, the higher Constitutional Judiciary should do some serious introspection.]

Somnath Chatterji

10 . There have also been other instances where judges have been accused of sexual misconduct. Some were relieved of their judicial duties. A retired Supreme Court Judge who was holding an important constitutional post in his home state had to tender his resignation soon after an FIR was filed against him. It is another matter that the FIR did not result in a Charge Sheet and that the accuser did not logically conclude her complaint. By this the Judge lost his opportunity to prove his innocence and yet suffered ignonimity. However, I believe that even acts of sexual indiscretion, which is personal  should not be a cause for complaint by citizenry, if there is no abuse of Judicial Authority.

11 .When I was a young lawyer, I used to  hear that in Bombay underworld settled legal disputes. People attributed this phenomenon to the inability of Mumbai Trial Judiciary to dispense Justice within a predictable time frame and cost estimate. Since the Trial Judiciary in Bombay was unable to meet these two legitimate expectations of  litigants, settlement of disputes by the underworld became an Alternate Dispute Settlement Mechanism in Bombay. In other places of Maharashtra where the Trial court delivered justice in a reasonable time, the underworld could not  gain a hold. Now I find that such a situation prevails all over Tamilnadu.

12. There are several entry barriers for a poor or middle class litigants to secure justice through the formal justice administration system. The most important entry barriers to justice administration system is the total lack of accountability of Judges. In this connection, we should make a distinction between accountability of Judges of constitutional judiciary (High Court And Supreme Court) and the judges of Trial judiciary. In fact, under the Indian Constitutional Judiciary does not come under the definition of “State”. I am aware that all the efforts of a responsible political leadership to make the Higher Judiciary more accountable fails because the Supreme Court has been continuously giving itself  more powers both in the manner of appointment and management of judicial conduct than what was originally given to them by the makers of the Constitution .So far the best efforts of our informed political class to reverse this judicial aggrandisement could not succeed so far. However, the Executive and the Legislature should continue their vigil against acts of judicial injustice by members of Trial Judiciary. Introduction of e-governance in Trial justice administration will go a long way in ensuring judicial accountability. Unfortunately, the pace and the direction of e-governance in justice administration is far from encouraging. In other words, the judges are quite uncomfortable with the idea of transparency and accountability in Justice Administration. That is sad and they should get used to the welfare concepts viz: administration viz: transparency and accountability.