A senior lawyer has said the new law "destroys" 
the independence of the judiciary 
as it defies the 
principle of separation of powers by bringing it 
under parliamentary control
A senior lawyer has said the new law "destroys" the independence of the judiciary as it defies the principle of separation of powers by bringing it under parliamentary control

Justice and impeachment are converse concepts. The state delivers justice through the judiciary but when it fails to do so because there are a few judges of questionable integrity, impeachment is the only solution. Tragically, despite eight judges facing the ignominy of impeachment since the Supreme Court was set up on January 28, 1950 — not a single judge was impeached. Most of them retired while two resigned before the proceedings reached midway.

Just last week, Chief Justice of India Ranjan Gogoi wrote to Prime Minister Narendra Modi to start impeachment proceedings against Justice Narayan Shukla of the Allahabad high court for his alleged involvement in a medical colleges admission scam. He was found guilty by a three-member in-house committee of judges but judges being judges, are immune from prosecution in court, for their judicial acts.

This is why Justice Shukla was denied judicial work after he refused to resign, more than 18 months after a three-judge in-house committee set up by the then CJI Dipak Misra returned its findings against Justice Shukla about his alleged involvement in the scam. Like some dubious judges who thwarted impeachment proceedings against them, Justice Shukla too may resign before being impeached.

For those who came in late, medical education both at the undergraduate and post-graduate level is a money-spinning industry because less than 68,500 MBBS graduates compete for 29,600 post-graduate seats in specialised branches of medicine. At least 30 per cent of institutions in the country lack facilities to impart post-graduate medical education. They are derecognised by the state medical councils or the now-defunct Medical Council of India (MCI) and pay bribes running into crores of rupees to continue giving medical degrees.

The CBI arrested a notorious high court judge, I M Quddusi, for promising the Prasad Institute of Medical Sciences to lift the ban on admitting aspiring doctors into its medical college. Quddusi used his technical knowledge to ensure the ban on this allegedly sub-standard medical college was lifted. He was not impeached because he had retired when he was nabbed by the CBI. Significantly, Justice Narayan Shukla also comes from the Allabahad high court which a retired judge of the apex court, Markandey Katju has described as having some unsavoury judges.

The 45th CJI. Dipak Misra, who set up a three-member committee to probe the corruption charge against Justice Shukla and also allowed Justice Quddusi to be arrested by the CBI faced the ignominy of the Congress filing proceedings in the Supreme Court to challenge the Vice President Venkaiah Naidu’s refusal to allow the CJI to be impeached by seven opposition parties. But this move by the Congress fizzled out and the 46th CJI Dipak Misra was allowed to retire despite serious allegations about his integrity by his four seniormost judges at a press conference in 2018.

In 2010, former Karnataka high court judge, D V Shylendra Kumar, had called the then chief justice of India, K G Balakrishnan, a “serpent without fangs” when the judiciary was resisting displaying their assets on the official websites of their courts. An income tax probe against this former CJI gave him a clean chit despite former apex court judges asking him to come clean on charges of corruption.

In 2015, 58 Rajya Sabha MPs sought to impeach Gujarat high court judge Jamshed Burjor. Pardiwala not on corruption charges but for his alleged "unconstitutional" remarks against reservation made while delivering a judgment on a special criminal application against Hardik Patel. Justice Pardiwala stated two things "destroyed this country or rather, (have) not allowed this country to progress in the right direction...(i) reservation and (ii) corruption".

The impeachment petition said the judge went on to state that "when our Constitution was framed, it was understood that the reservations would remain for a period of ten years, but unfortunately, it has continued even after 65 years of independence". Justice Pardiwala deleted the offending remarks from his judgment and was allowed to gracefully retire despite his opinions on the reservation.

In September 2009, lawyers from the Bar Council of India alleged Justice Paul Dinakaran had amassed huge assets at Arakkonam in his native village and was involved in land grabbing. Ironically, the Supreme Court announced on August 28, 2009, he would be elevated to the top court. He refused to resign and an equally controversial CJI K G Balakrishnan transferred him to Sikkim as the chief justice where the president of the Sikkim Bar Association D R Thapa asked "How come a judge who was found to be not fit to discharge judicial duties in one state has been found worthy of doing the same in another state? "Following this controversy, Justice Dinakaran chose to resign rather than be impeached.

In 2015, Justice Soumitra Sen of the Calcutta high court achieved the dubious first of being the first judge whose impeachment motion was unanimously passed by 50 MPs in the Rajya Sabha before being sent to the Lok Sabha to complete the impeachment process. Rather than be forced out of office on corruption charges of depositing Rs 33 lakhs in his personal account after he was appointed a court receiver by the Calcutta high court while a lawyer, Justice Sen wisely chose to resign on September 1, 2011 just four days before his impeachment motion was to be heard in the Lok Sabha. The irony is that the lawmakers forced an honest judge like Pardiwala to face an impeachment motion while allowing a corrupt judge like Justice Sen to resign gracefully with his emoluments intact.

And so we are forced to conclude that independence of the judiciary includes the right not to be made accountable to the state for judges’ acts of omission and commission. A few rotten apples can contaminate the entire basket. So, after they are made permanent, no power on earth can force a judge out of office. That is the independence of the judiciary for you.

The writer holds a PhD in Media Law. He is a journalist-cum-lawyer of the Bombay High Court.

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