The present chief justice of India has boldly taken the initiative and written to the prime minister that a particular judge of the Calcutta High Court be removed by a motion moved in Parliament. But the procedure for the removal of a judge is deliberately made slow and burdensome in our Constitution — rightly, in order to enable judges of the higher judiciary to discharge their functions “without fear or favour”. A motion signed by 50 MPs in the Rajya Sabha or 100 MPs in the Lok Sabha must first be moved on the floor of the House; then be referred to a committee of judges and jurists chosen either by the speaker of the Lok Sabha or by the chairman of the Rajya Sabha (in the House where the motion is introduced). After that the committee makes an investigation into the charges framed against a particular sitting judge, and makes a report. Even if that report concludes that the judge concerned is guilty of “proved misbehaviour” that is not the end of the matter. The motion has to be voted in Parliament and if two-thirds of the members present do not vote in its favour the motion is dropped. The great question is: what in the meanwhile? In the meanwhile, this sitting judge was not allotted any work by the then chief justice of Calcutta which was the right and proper thing to do.

In the other group of cases, allegations of grave impropriety have been made against some judges of the superior judiciary. In Punjab, they are being initially considered in an informal manner by a committee of judges appointed by the chief justice of India and, in the other (in Uttar Pradesh), they are left to be probed by the CBI. In my own humble view if there is to be an informal probe prior to the heavy-artillery of “removal” being called into play, it must be by someone like a judicial ombudsman appointed by Parliament by law — which would protect the very vast number of decent and honourable judges who continue to administer justice in the superior judiciary without fear or favour. Should they be exposed to police complaints, police investigations and the like by disgruntled litigants? There is always one unhappy litigant in every case! In my humble opinion our upright and honourable judges should not be subjected to this harassment. Hence the crying need for a judicial ombudsman.

In the present case, until the “CBI probe” and its report to the Supreme Court, the judges under a cloud continue to sit as judges in the superior judiciary dispensing justice. Public confidence in the superior judiciary, which has always been very high, must continue to be maintained.

I would respectfully submit that it can and should be maintained by time-honoured and well-tested methods. Time-honoured and judicially recognised by a Constitution Bench of the Supreme Court in the case of Judge J.P. Mitter, when his age of superannuation was in dispute, the Supreme Court had said (in 1965): “If a dispute arises about the age of a judge, any prudent and wise chief justice would naturally think of avoiding unnecessary complications by refusing to assign any work to the sitting judge...”

This view — judicially approved — has been acted on by judges in the past, who have been trend-setters, in recent times by the former chief justice of Calcutta, and even in earlier times by other distinguished judges.

A former chief justice of Bombay, Chittatosh Mookerjee, in 1989 refused to give any work to four named judges of the Bombay High Court on a complaint made of wrong-doing by about 200 advocates. The concerned judges complained to their chief justice that they were badly treated on the basis of mere suspicion: but the chief retorted that judges who have powers of life and death over citizens must be above suspicion: proof beyond reasonable doubt was law for citizens, not for judges. Chief Justice Chittatosh told them that if they thought his order refusing to allot them work was unfair or unjust, they should move the high court on the judicial side to have the order set aside. Not one of the four filed any writ petition, neither in the high court, nor in the Supreme Court. These judges continued to draw their salaries as judges till they reached superannuation (one of them resigned) but no work was allotted to those who remained.

The other case is that of former chief justice of India, Justice Sabyasachi Mukharji. He rose inches in stature in the eyes of the Bar when he passed an order in open court (on July 20, 1990) saying publicly why he had ordered that no work would be given to a particular judge of the Supreme Court till his name was cleared. This “order” (which is not a judgment) is a fine instance of judicial statesmanship. It is worth reading: reported only in the journal section of Scale (Vol 2, 1990).

The media these days, armed with 24/7 channels, are having a field-day with so-called “judicial scandals”. The bad publicity generated gives our entire judiciary a bad name. This can be prevented. In the present circumstances it can only be prevented if the right action is taken. And in my humble view the right action would be for the chief justices of the concerned courts of the superior judiciary to direct any concerned judge involved in questionable conduct be not allotted any work till his/her name is cleared. This is the only way in which the otherwise fair name of our higher judiciary — of which I am very proud — will be maintained. The Institution is always greater than the men and women who for the time being sit in it!

The writer is an eminent jurist

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