THE POLICY LAB-29
AUGUST 18 , 2023

By J B Mohapatra

RECENT expose' on a US Supreme Court justice and his questionable conduct in bankrolling his own personal destination vacations no less than on 38 occasions, 26 private jet flights, 8 helicopter flights, 12 VIP Passes to sporting events, 2 resort stays, one standing invitation to an exclusive golf club through justice's rich friends opens up the unresolved discussions on ethical legitimacy of justice's conduct in potential conflict of interest situations in the light of constitutional standards and whether the constitutional guardrails against questionable conduct of justices are efficacious in democracies, whether it is the oldest or it is the most populous.

USA first. The first 3 Articles of US constitutions lays down the broad architecture of appointment and removal of justices. Article III of its Constitution reads as follows:

Article III. Section 1.

"The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour , and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office."

Article II. Section 4 reads as follows:

"The President, Vice President and all civil officers of the United States, shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanours"

Operative parts linked to impeachment of Justices within the sole powers of the Senate as given in Article 1 of its constitution reads as follows;

Article I

"The Senate shall have the sole power to try all impeachments. When sitting for that purpose, they shall be on oath or affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no person shall be convicted without the concurrence of two thirds of the members present.

Judgment in cases of impeachment shall not extend further than to removal from office, and disqualification to hold and enjoy any office of honour, trust or profit under the United States: but the party convicted shall nevertheless be liable and subject to indictment, trial, judgment and punishment, according to law."

Whereas there is limited guidance within the confines of the US constitution as to what should invariably constitute grounds for impeachment of justices, there is overwhelming bipartisan acceptance of the fact that an ideological often partisan disagreement over a court ruling does not constitute an offence warranting impeachment, and that impeachment ostensibly has to be linked to grave ethical and criminal misconduct in the nature of perjury or fraud or wilful acts of favouritism, grave abuse of process or incapacity to perform. One can safely infer that justices can be impeached and/or removed on grounds of treason, bribery, or other high crimes and misdemeanours in the like manner of all civil officers as per article II, once justices transgress the red line of acceptable or 'good behaviour' referred to in article III. With respect to justices, the House has the power to impeach and the Senate has the power to hold a trial to ascertain whether removal will be appropriate. House can impeach a justice with a simple majority vote, but he can be removed from office following a trial and a vote to convict by a 2/3 rd majority of the Senate. In the USA's history of actions against justices' excesses and indiscretions, impeachment and removal happened on basis of below mentioned grounds: mental instability and intoxication on the bench; refusing to hold court and waging war against the government; improper business relationship with litigants; practising law while sitting as a judge; income tax evasion and remaining on the bench following a criminal conviction; conspiracy to solicit a bribe; perjury before a federal grand jury; accepting bribes. In cases where trial and conviction failed after successful impeachment proceedings, grounds ranged from arbitrary and aggressive conduct of trials, or abuse of contempt powers, misuse of office to favouritism in appointment of receivers. Needless to say, instances of egregious indiscretions and moral turpitude in most instances get punished through removal, though bipartisan disagreement is rife in cases where ideological positions of parties get resonance in or shut out in justice's orders. The only successful case of impeachment by the House of a supreme court justice in its 250 year history was in 1805, the justice later acquitted by the Senate. Of the 15 federal judges against whom impeachment proceedings were successfully put through by the House, 8 were convicted by the Senate and thus removed, four were acquitted by the Senate, and three resigned before conclusions of the trial.

Barring small and not very significant variations, more or less similar is the constitutional arrangement and procedure for disciplinary actions in respect of higher judiciary in India. Article 124 and 217 of Indian Constitution lay out the intent, scope and the broad conceptual framework of the disciplinary regime for higher judiciary at the level of the Supreme court and the High Courts. Below are the operative parts:

"Article 124. Establishment and constitution of Supreme Court.—

(4) 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.

(5) Parliament may by law regulate the procedure for the presentation of an address and for the investigation and proof of the misbehaviour or incapacity of a Judge under clause (4 )."

"Article 217. Appointment and conditions of the office of a Judge of a High Court. -

(1) Every Judge of a High Court shall be appointed by the President by warrant under his hand and seal--------------

Provided that—

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(b) a Judge may be removed from his office by the President in the manner provided in clause (4) of article 124 for the removal of a Judge of the Supreme Court ;"

Procedure for removal of justices referred to in article 124(5) of Indian constitution is embodied in the Judges Inquiry Act, 1968 and follows more or less similar mechanism laid down in the USA constitution. Thus a motion for impeachment can originate in either house of India's parliament ( unlike in the USA, where motion can only be moved at the Senate). Once admitted, the motion is further examined at the level of the Judges Inquiry Committee. Report of the committee is laid before the relevant house of the parliament. Motion for removal is required to be adopted by each house by a majority of total membership of the house and a majority of at least 2/3 rd of the members of the house present and voting. In 75 years of India's history, 4 cases (one of a Supreme Court justice, and 3 justices of High Courts) effectively went through the Judges Inquiry Committee procedure on basis of motions adopted in either House of the parliament and involved charges such as intentional and habitual extravagance at the cost of exchequer, misconduct and corruption, misappropriation of money, and moral turpitude. The case of the justice of Supreme Court did not muster sufficient number of votes for a successful impeachment. Out of the 3 cases of High Court justices, one resigned after impeachment, the second after the submission of the report of the Judges Inquiry Committee, and in case of the 3 rd , the Judges Inquiry Committee found no substance in the allegations warranting framing of charges.

There are one or two precedents, apparently effective but a rarely employed strategy, very different from regular impeachment proceeding, to render a justice under investigation and inquiry from discharging judicial functions on the basis of an advisory from the very top of the judicial hierarchy. This was tried by at least 2 CJI in the 1990's in respect of a justice in the Supreme Court. Between the 3 choices currently available (a) impeachment (b) impeachment and removal and (c) nothing, an administrative advisory could well be a short-term alternative, but have the potential of signalling the larger intent and commitment to ensuring probity in judicial life.

Substantively, the number of impeachment proceedings moved in the parliament and removal of justices from service as a consequence to these proceedings has nothing other than of statistical significance and does in no manner fully express the overall efficiency of the constitutional mechanism built to ensure probity, standards and 'behaviour' expected of the judiciary nor does it conclusively pronounce upon the efficiency of the internal governance and disciplinary architecture within the judiciary. Much depends on meaning of 'behaviour' in context of the formulation in the constitutions guiding the conduct of justices in discharge of his duties, for their continuance in service and for their removal , and whether there can be a reasonable bipartisan agreement or disagreement on (a) what elements must constitute 'behaviour' and what elements must exhibit 'misbehaviour' (b) should constituents of 'good behaviour' or 'misbehaviour' be interpreted as immutable and monolithic or in a manner that is time-relevant and specific to the time we live in and (c) should ideological positions of justices be treated as a constituent of 'behaviour' or 'misbehaviour'.

"Good behaviour" clause in the US constitution as a condition precedent for continuance of a justice in his office and "proved misbehaviour and incapacity" in the Indian constitution as a condition precedent for impeachment and removal of a justice mainly subserve 2 purposes: one, it answers to the ethical concerns of the republic and lays down the spirit of judicial code of conduct; and 2, it acts as guardrails against arbitrary and unjust executive actions. Had there been no constitutional safeguards in the manner laid out in the constitutions, a justice in US Supreme Court in 1805 could have been impeached and/or removed on charges principally of which is arbitrary and oppressive conduct of trials.Code of Conduct for US justices of 1973 with its 5 ethical canons - (1) a judge should uphold the integrity and independence of the judiciary (2) a judge should avoid impropriety and appearance of impropriety in all activities (3) a judge should perform the duties of the office fairly, impartially and diligently (4) a judge may engage in extra-judicial activities that are consistent with the obligations of judicial office and (5) a judge should refrain from political activity, are the essential substratum for ensuring 'good behaviour" and are similar to the ethical canons enshrined in the principles laid out and adopted by the Chief Justices' Conference of India(Restatement of Values of Judicial Life; 1999) and the Bangalore Principle of Judicial Conduct, 2002 .

While strengthening the code of judicial conduct is a continuous process, the three questions in an earlier para are, to me, of paramount importance. In short, whether there can ever be a bipartisan agreement on 'high crime and mis-demeanour' or 'proved misbehaviour'. This takes us to the question: whether lowering of judicial standards for continuance of a justice in office is fair and acceptable as a political strategy. Finally, what will be left of the public trust in judiciary if judicial standards get lowered with each passing impeachment.

If a fraction of the allegations in the opening para of this article is established, legislators in the US on both sides of the aisle would have a raging battle on their hands.