THE TAINTED FORFEITS THE RIGHT TO JUDGE

There is no denying that the Dinakaran episode has tarnished the image of our judiciary. To the common man, justice is divine and the judge personifies righteousness and fairplay. People approach the courts with the belief that truth and justice will ultimately prevail through the judicial verdicts.
Even George Gadbois, a foreign author, has realised that the people of India look up to the judiciary for the upholding of justice, constitutional principles and the Rule of Law. In his view, "The judges are highly esteemed by the public. More than any other segment of the elite, they are viewed as the examplars of honesty and integrity in public office. Indeed, the average citizen believes that the judges are the only group remaining in the political system in whom trust can be placed and whose activities are beyond reproach."
Political leaders may falter, but the judges are infallible. Some may be dishonest, but the majority of judges are upright. As M Hidayatullah, a former Chief Justice of India, once remarked, "The citizens expect the courts to rectify the deficiencies in our society. They certainly look to the courts for the redress of any grievance they may have."


Impeachment
THE Indian judiciary has, to a large extent, maintained a clean image. Charges of corruption have seldom been raised against the judges. Though the Constitution has provided for impeachment, no judge has been impeached since independence. In 1993, however, a motion was raised against Justice V Ramaswami of the Supreme Court for financial misdemeanour. But it was undermined by the Congress which abstained from voting.  Some years ago, a serious allegation of sexual perversion was levelled against a judge, but he immediately resigned in order to avoid constitutional steps against him.


Save certain rare cases, no serious allegation has been raised against the judges.  However, we are yet to reach a position where we can feel proud of an ideal judiciary.


Unfortunately, the recent case of  Justice PD Dinakaran has severely dented the public faith and respect in the judiciary. Mr Dinakaran, whose elevation to the Supreme Court was suddenly halted, faces serious allegations and a motion for his removal has been placed before the Rajya Sabha. His offences include the possession of wealth  disproportionate to his known sources of income, unlawfully securing five Housing Board plots in the name of his wife and daughters, entering into unlawful transactions, and acquiring agricultural holdings beyond the land ceiling. The other allegations relate to illegal encroachment on government property by depriving the Dalits and the poor, violation of human rights vis-a-vis the Dalits and destruction of evidence during the official inquiry.


All the charges are serious. Unless they can be proved to be totally baseless, he can have no moral right to deal with the faults of others.  Significantly, the Supreme Court collegium advised him to go on leave till the inquiry was completed. But as he was unwilling to go on leave for an indefinite period, he has been asked to take over as Chief Justice of Sikkim High Court. The Sikkim Bar Association has unanimously decided to boycott the CJ should he accept this new office. They have iterated that this judge has tarnished the image of the judiciary before the public eye. Thus, the issue has become complicated owing to procedural lacuna.
Those who framed our Constitution were aware of the possibility that some judges might be subject to human frailties and that, in such cases, they should be removed. But the grounds for and the procedure of such removal have been spelt out in the Constitution to guard against abuse of power or politicisation of  the issue. Article 124(4) reads, "A judge of the Supreme Court shall not be removed from his office except by an order of the President passed after an address by each House of Parliament supported by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present and voting has been presented to the President in the same session for such removal on the ground of proved misbehaviour or incapacity."  And Article 227(b) states that a judge of the High Court may be removed from his office in the same manner as provided in Article 124(4).


Thus, the ground for and procedure of such removal have been cautiously mentioned in the Constitution. A resolution for the removal of a judge can be raised for "misbehaviour" which may mean misconduct, corruption and  moral turpitude. He may also be removed because of "incapacity", either mental or physical. Whatever the ground, the allegation must be "proved". In other words, it must be substantiated by authentic evidence. Otherwise, a judge may be a victim of injustice.


Rigid and flexible

THE other aspect is the procedure. The resolution must be passed by both the Houses of Parliament by at least two-thirds majority. The framers of the Constitution thought that the difficulty of obtaining a special majority would ensure the security of service to the honest judges, but it would be easily available in the case of an early removal of their inept or corrupt colleagues.


But the procedure is actually both rigid and flexible depending upon the prevailing political situation. If the ruling party secures an overwhelming majority in both the Houses, then even an honest judge may have to pay the price for his integrity and honesty. However, in a different political situation, the motion for the removal of an unwanted judge would eventually be ineffective.


The charges levelled against Mr Justice Dinakaran are related to "misbehaviour", but it is difficult to say whether or not the motion for his removal will be passed with the requisite majority in Parliament. If it is lost in either House, then he will regain the right to settle others' disputes in spite of a tarnished personal image. Experience shows that impeachment, the only remedy prescribed by the Constitution to deal with such judges, is almost unworkable.


As such, we must seek an alternative. The impeachment mechanism may fail to serve its purpose and the Judges Inquiry Act of 1968 may shield the judges from allegations. But, according to the Constitution, everybody is equal in the eye of law and the Indian Penal Code is applicable irrespective of rank or status.  Why can't the government apply the penal law against a judge who is allegedly guilty of violating the law? The penal measure of the land should be equally applicable to his case because his status does not matter.
If a judge fails to maintain a clear image, he can by no means, be expected to do justice to others.  He morally forfeits the right to penalise others for their guilt.