Who will judge the judges?

When Roman poet and philosopher Juvenal wrote “Quis Custodiet Ipsos Custotdes?” (Who will guard the guards themselves?), he must have confronted a situation which left him baffled and nonplussed. I came across a similar situation when I was called to appear in the Jharkhand High Court on June 26, 2024 before a particular bench presided by a single-judge.

A rumour doing the rounds among the members of the Bar about the erratic behaviour of the judge actually turned out to be true. The Court assembled at 10:45 AM and abruptly rose for the day at 12 noon without assigning any reasons. I kept waiting till 1:00 PM along with the other lawyers accompanying me. I was informed that the judge would not reassemble for the day, for no reason ascribed. All other lawyers who were attending the Court and the litigants who were eagerly awaiting the fate of their cases were not at all aghast, as this was a usual and regular phenomenon in that Court.

No litigant or regular practitioner dared question such erratic conduct of a sitting judge, since they were apparently afraid of annoying the judge before whom they regularly appear. This prompted me to write about this unusual phenomenon, which is rampant in various courts nowadays.

In quick succession came the observation of Justice BR Gavai of the Supreme Court, who, while speaking at the National Judicial Academy Conference at Kolkata, expressed his anguish that some High Court Judges do not sit on time and rise for the day without presiding the Court in the second half of the day. He said,

"It is shocking to know that some of the judges, though the court timings are 10:30 AM, sit at 11:30 AM and get up at 12:30 PM though the court timings are up to 1:30 PM. It is more shocking to know that some of the judges do not sit in the second half."

Justice Gavai also expressed his reservation at the way some judges treat lawyers without dignity. He said,

"The lawyers are not treated with the dignity they deserve and are often humiliated by judges. We should not forget that the judges and lawyers are co-equal partners in the administration of justice; none superior, none inferior. Misbehaving with lawyers does not enhance the dignity of the institution, but rather undermines it."

Judges, particularly those holding a Constitutional post, have extensive power on original, extraordinary, revisional and appellate jurisdiction of cases. A major percentage of such cases are those of the poor classes, who travel far and wide to approach the court with great hope and faith in the institution. And once they find such erratic behaviour of the judges, their hope and faith in the institution gets shattered, resulting in despair and frustration. Justice for them becomes unaffordable. The assurance given in the Preamble to the Constitution to have a system of governance that provides “Justice” to the people becomes a nightmare for “WE THE PEOPLE”. It deprives consumers of justice of their lives, their means of livelihood, liberty and freedom, which they are entitled to, besides being a waste of public time and public money.

Our Chief Justice of India, while speaking at Judicial Academy, Kolkata, rightly pointed out that there lies grave danger when judges perceive themselves as deities in the temple of justice. On another occasion, the CJI further emphasised,

“The Court must subserve no might but the Constitution and be in the service to no-one but the litigants. Our Courts are not merely rights of sovereign power but are also essentially a public service provider.”

But the question is: Do these messages and noble words of apex court judges percolate down to the fellow judges of the Constitutional Courts in India?

Though a Chief Justice of a High Court is parens patriae, he is only the first among equals and has no regulatory or disciplinary powers over his brother and sister judges. Since all judges are equal as far as their adjudicatory powers are concerned, their judicial errors may be corrected in appeal. But irregularity, non-punctuality and temperamental issues of a particular judge are outside the scope of judicial review. Judicial discipline in India is primarily and exclusively imposed qua the subordinate judiciary by the judiciary of the upper echelons. When a judge hears a trial of any case, he forgets that he himself is on trial within the public gaze.

As the custodian of the Constitution, the apex Court in its Full Court meeting held in May 1997 adopted the 're-statement of values of judicial life' which are only illustrative and not exhaustive. Para 1 and Para 16 of such re-statement of values says as under:

“Para 1. Justice must not mere be done but it must also be seen to be done. The behaviour and conduct of members of the Higher Judiciary must reaffirm the people’s faith in the impartiality of the judiciary. Accordingly, any act of a judge of the Supreme Court or the High Court whether in official or personal capacity which erodes the credibility of this perception has to be avoided.”

“Para 16. Every Judge must at all be conscious that he is under the public gaze and there should be no act or omission by him which is unbecoming of the high office that he occupies and the public esteem in which that office is held.”

There is no effective method today in India for disciplining a judge of a superior court either for misbehaviour under Article 124 of the Constitution.

Article 217 of the Constitution of India is also not an effective remedy for correcting an erring judge who flouts his oath to Constitutional objectives with impunity. Proviso (b) to clause 1 of Article 217 of the Constitution says that a judge may be removed from his office in the manner provided in Clause 4 of Article 124, which provides,

“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 the total membership of that House and by a majority of not less than two-third of the members of the House present and voting has been present to the President in the same session for such removal on the ground of proved misbehaviour or incapacity.”

Article 124(5) of the Constitution further empowers Parliament to make law to regulate the procedure for the presentation of the address and for investigation and for proof of misbehaviour or incapacity of a judge under Clause 4. The words, “misbehaviour” and “incapacity” as appearing in clause 4 or clause 5 of Article 124 of the Constitution are not defined. It is left to the wisdom of the Members of Parliament to decide whether “non punctuality” or “irregularity” or “misbehaviour with the lawyers” in functioning as a judge would fall within such category of misbehaviour as to initiate impeachment. However, no such instances have been recorded in judicial history so far.

The Judges Inquiry Act, 1968 framed under Article 124(5) of the Constitution only lays down the procedure for removal of a High Court judge on proven misbehaviour or incapacity, but does not categorise illustratively the nature, scope and ambit of such misbehaviour. A litigant has no means to resort to any regulatory measures to discipline such an errant judge who strays away from the accepted norms, even though litigants are larger stakeholders in dispensation of justice.

In his speech referred to earlier, Justice Gavai quoted Socrates to say,

“Four things belong to a judge - to hear courteously, to answer wisely, to consider surely and to decide impartially. A judge should be studious, courteous, conscientious, patient, punctual, just, impartial, fearless of public clamour, regardless of public praise, indifferent to private, political or partisan influences."

The time is ripe to introspect and ask whether judges holding high Constitutional posts follow and abide by the re-statement of values of judicial life. The question still lingers on: Who will judge the judges?

SB Upadhyay is a Senior Advocate of the Supreme Court.