If a judge of the superior court has allegedly violated any law, is it a fit case for the Supreme Judicial Council (SJC) to enquire into his misconduct or must the SJC wait for the law to take its own course? But can their lordships be tried like us? Why not, if my lords can be handed over a ticket for over speeding, why can’t the FBR proceed against them if they haven’t filed their returns properly, but then, can a judge be tried for money laundering?; How can the executive be given a license to prosecute judges, what if they were persecuted on account of ulterior motives, isn’t executive the largest litigant who has its own ball before the superior courts every day, what if a baseless finding is given against a judge, can he approach a court of law and then, how can a lower court independently decide such a case?; How about we followed India where you require permission of CJI before a judge could be charged for corruption, but why just the chief justice? What if he has a personal disliking against the judge, After all independence of judiciary also envisages independence from your own colleagues as well; Ahron Barrack in his book “judge in a democracy” states with utmost conviction that “a judge has no master except the law”; Whilst most unlawful actions may be termed as misconduct, when both are surely separate, why cant they be tried separately? But how can they be tried separately when the code of conduct issued by SJC warrants “that a judge must at all times remain blameless”; Shouldn’t then the SJC be exclusively competent to enquire into all such aspects? But on what basis must the president form his opinion when no one else but only the SJC can conduct the enquiry; Are some of the most captivating questions which have arisen out of the 184(3) proceedings filed by a sitting judge of the SC before the SC and in a way also against the SC (on account of allegations against members of SJC). Simply put, it is the “the Supreme Court on trial”. All eyes are on the Court and they are conscious of the fact that they have to maintain a higher threshold; how otherwise would you satisfy the people when they ask “who will watch the watchman?”
The question that really goes to the heart of the matter is where to draw the line between accountability and independence? Impeachment is the only method for removal of superior court judges embraced by some of the most developed countries in the world including USA, japan, UK Canada, Australia, India and other common law countries. It requires 2 separate trials, a factual trial by a body invariably comprising of experts including siting or retired judges and thereafter a political question is tried by the legislature which requires a 2/3rd majority of total members present in most of the countries. For instance in India 5 separate steps are required; at least 100 members from Lok Sabha or 50 from Rajiya Sabha are required to initiate a motion, if the chairman approves, he then sends it to a committee of 3 members (any sitting judge of the SC, retired judge of the SC, chief justice of any state) which he constitutes in consultation with CJI, in the event the committee unanimously finds him guilty only then the matter proceeds for the trial on political question, at least a majority of total membership of both the houses and 2/3rd of the total members present is required for the motion to succeed. As if the protection was not enough the Indian SC continues to reserve the powers of judicial review even after the process is over.
So much for independence of judiciary? Layers over layers, Walls with in walls & fort within forts. The people may curiously ask why one organ of the state is excessively protected? The answer to this would only satisfy them once they realized that all those layers are not for the judges and what is impenetrable is not the judge but their own list before the court. Independence of judiciary is not for the judge but for the one who is judged. Would you ever lodge a complaint before a judge if you knew he is weak? When a litigant knocks on the door of the court he believes there is some higher authority, which can fearlessly redress his grievance and whip the executive but what if the executive could also whip the judge back? What would be the point of going to a fragile court if judges were themselves living in a glasshouse which could be shattered by barely throwing stones at it; which is precisely why they must be answerable to no one else but only the SJC. What basis can the SJC proceed with a complaint however when no one else can even collect material against a judge and why should anyone surreptitiously snoop into the life of a judge when you cant even spy against an ordinary citizen; no justice for the justices? Are more difficult questions to answer.
Peter W.Hogg in his 5thedition of Constitutional law of Canada considers judicial dependence as the worst form of “ tyranny”. It is for this reason that most countries have consciously protected judiciary from executive’s reach. It can neither initiate nor has any role in the process of impeachment but merely to act as a post office.
Have we done enough to protect the faith of litigants then? Some might be quick to argue that “accountability by no one else but your own peers” ensures unparalleled independence of judiciary but then history corrects us; those who suspended Justice (retd) Iftikhar Chaudhry were also his own colleagues and perhaps all junior to him. Under Article 209 president can single handedly direct the SJC to initiate an enquiry or the SJC can do it on its own and be done with it. As opposed to multifarious layers of protection inbuilt in the process of impeachment we rely solely on the notion of “trial by your own colleagues”. There’s an obvious void and thanks to the SC for stepping in and becoming the ultimate shield. When must the SC intervene though? Only when proceedings are tainted with malice or rather on ordinary grounds of judicial review? It would all be for nothing if one has to prove “Malafides” in order to challenge a reference since you can hardly ever meet that threshold. Conversely recourse to the SC on ordinary grounds of judicial review will open floodgates and virtually render SJC proceedings subject to an NOC from the SC in every single case. Either way the choice is not without consequences. The former jeopardizes the independence of judiciary and the latter makes accountability an unrealistic task. How do we achieve both? One can leave it to the legal wizards and their lordships wisdom.