The question of when and how to remove a judge of the higher judiciary has been a matter of controversy in our country for sometime. The dilemma has always been about maintaining judicial independence while also ensuring judicial accountability. In other words, the unique role played by the judiciary in any modern democracy requires it to be insulated from pressures from other branches of the State while at the same time requiring it to perform extremely arduous tasks in public service. The delimma is best captured in the words of the famous American judge Benjamin Cardozo who said “The great tides and currents which engulf the rest of men do not turn aside in their course and pass the judges by.”
Yet, it is not possible to treat a judge on par with any other Government official, because the judge is the only effective check against the pushes and pulls of a majoritarian democracy, which, as we have often seen, can descend into vote-bank politics or even open despotism. A modern democracy is based on the fiction that a majority vote signifies the consent of citizens to be governed by the legislature and the executive. This rather imperfect basis for legitimising the power of rulers is strengthened only by the presence of an independent judiciary. Therefore, judicial independence has been held to be part of the Constitution’s Basic Structure, thereby placing the relevant constitutional provisions beyond parliamentary intervention.
Upholding constitutional right, a crime?
Justice GR Swaminathan ordered that the Deepam must be lit at the Deepathoon pillar by 6 PM, warning that contempt proceedings would begin at 6:05 PM and authorities did not comply. Temple authorities, backed by the DMK, appealed the order earlier in the day claiming possible “communal tensions”. When officials still refused to act, the court accepted the contempt plea and summoned the temple EO und the Madurai Police Commissioner. Justice GR Swaminathan reminded officials that their duty is to enforce the law, not follow oral dictates.
In light of the above, the debate has always centered around what mechanism is to be adopted to remove a judge without interfering with judicial independence as such. The present provisions in Articles 124 and 218 of the Constitution state that the President can issue the removal order after an address by the Parliament. The motion to remove the judge must be supported by a special majority of each House of Parliament. In the Constituent Assembly, some members wanted an additional safeguard in the form of judicial enquiry into any allegations against a judge before the process of impeachment takes place. In response to such concerns, Alladi Krishnaswamy Iyer said, “There is sufficient safeguard in the reference ‘proved misbehaviour’ and we might make elaborate and adequate provision for the way in which the guilt could be brought home to a particular judge in any Federal law”. Therefore, judicial independence was sought to be protected by having an independent mechanism for enquiring into the allegations which took shape under the Judges (Inquiry) Act, 1968. While the difficulty of removing judges, even in cases of proven misconduct, under the current mechanism has been a cause for concern, and various suggestions for reform have been mooted, a relatively less controversial aspect of the law has been the understanding of the terms “misbehaviour” and “incapacity,” which constitute the grounds for removing a judge. It was always understood that misbehaviour meant conduct beyond just the rightness or otherwise of the views taken by a judge during the discharge of his judicial functions. In fact, the ground of misbehaviour for removal of a judge in some ways, mirrors the principle in both England and the USA that a judge can continue to hold office during “good behaviour”, which some see as giving a guarantee of tenure. The Supreme Court in Krishna Swami v. Union of India & Ors. [(1992) 4 SCC 605] has clarified that “every act or conduct or even error of judgement or negligent acts by higher judiciary per se does not amount to misbehaviour. Willful abuse of judicial office, Willful misconduct in the office, corruption, lack of integrity, or any other offence involving moral turpitude would be misbehaviour.”
It is this interpretation of the grounds of removal, as setting a very strict criteria of misbehaviour, which I think is the strongest safeguard against interference with judicial independence. It is not any mistake committed by a judge and certainly not a particular view taken by a judge that can ever be ground of impeachment. It is this fundamental and uncontroversial aspect of the law that is sought to be disturbed in the much publicised attempt to impeach to Justice GR Swaminathan of the Madras High Court following his order on the developments linked to Thiruparankundram temple case.
Contempt at its very core is reflected in the DMK Government’s refusal to comply with the Madras High Court’s order in the Karthigai Deepam case associated with the Bhagwan Subramanya Swamy Temple near Madurai. This amounts to nothing but dynastic contempt for constitutional law and Dravidian contempt towards dharmic traditions.
This attempt by the DMK and its political allies can be viewed in two ways. First, in order to somehow fit the case against Justice Swaminathan within the strict criteria of ‘misbehaviour’ under the Constitution, some allegations are raised in the letter given by INDIA Bloc MPs to the Lok Sabha Speaker. The allegations are made to look serious but are conspicuously devoid of particulars. When serious allegations like, he decides cases “favouring advocates from a particular community” and “against secular principles” are raised, one would have expected the letter to contain statistics and case details to establish them. It only contains vague references to some cases involving religious rites. The judgements in these cases may not have appealed to the ideological moorings of some political parties. Sufficient care has not been taken to even spell the name of an advocate named in the letter correctly. This advocate was mentioned as an example of Justice Swaminathan’s favouritism towards a particular community.
Similarly, even with respect to the other allegations regarding anti-secular views, it is important to look at the statistics. Mohammed Imranullah, Deputy Editor of The Hindu, said in a tweet that Justice Swaminathan is known as the ‘darling’ of the Madurai bar because “He has disposed of 73,505 main cases in the last eight years & does not hesitate to begin court at 9 AM & continues till late evenings.” Very few judges have such a record. The complaint by the INDI Block MPs does not mention which and how many of these cases were influenced by alleged anti-secular views. In fact, Justice Swaminathan is well-known as an advocate of free speech for everyone. As a lawyer, he defended the controversial writer Perumal Murugan known for his anti-Hindu writings, and as a judge, he has quashed criminal complaints against persons who were prosecuted merely for their political views no matter which side of the political spectrum they belonged to. In one case, he quashed FIR filed against a member of the CPI(ML) for his posting a photo on Facebook with the caption, ‘Trip to Sirumalai for shooting practice’ and in another case, he quashed FIR against right-wing YouTuber Maridhas. His empathetic judgement towards a religious group from the minority community during the COVID-19 lockdown was also widely reported. So, it is really not possible for the propounders of this impeachment motion to justify any allegation made against Justice Swaminathan on the standards of ‘misbehaviour’ required in the Constitution.
This brings us to the real motive behind this impeachment motion. It is obvious that even DMK leaders do not think this impeachment is a real possibility. It is similar to how Indira Gandhi got three Supreme Court judges of unimpeachable integrity to resign without having to take any action against them; simply by superseding them in appointing the Chief Justice. In law, you call this a colourable exercise of power. What you cannot do directly, you try to do indirectly. It is this kind of outcome that the DMK and INDI bloc is hoping it will probably get by this impeachment motion and media trial against Justice Swaminathan.
It is unfortunate that a solemn remedy meant to be used in the rarest of cases is being used in such a partisan manner. One irony that needs to be pointed out is that the first attempt to impeach a judge in independent Bharat was the case of Justice V Ramaswamy. Allegations of financial irregularities against him were held to be proved by a committee appointed by the Lok Sabha Speaker. The Dravidar Kazhagam, the DMK’s ideological mentor, opposed the impeachment by giving the issue a caste and regional colour. It is the same negative attitude that appears to be driving the current campaign against Justice Swaminathan. There is no concern for the actual virtues required of a judge in terms of integrity, hard work and humility. It is the battle of a particular ideology to bring the judiciary under its control.
