Here are some extracts from a judgment delivered by a two-judge bench of the Supreme Court of India consisting of Justice D.Y. Chandrachud (Now CJI) and Justice Bela M Trivedi, on 06.05.2022, in CIVIL APPEAL NO. 3613 OF 2022 (Arising Out of SLP (C) No. 21948 of 2019) MUZAFFAR HUSAIN Versus STATE OF UTTAR PRADESH AND ANR. Justice Trivedi authored the judgement that copiously cites extracts from other judgments about judicial misconduct.
Para 5
“Judicial office is essentially a public trust. Society is, therefore, entitled to expect that a Judge must be a man of high integrity, honesty and required to have moral vigour, ethical firmness and impervious to corrupt or venial influences. He is required to keep most exacting standards of propriety in judicial conduct. Any conduct which tends to undermine public confidence in the integrity and impartiality of the court would be deleterious to the efficacy of judicial process. Society, therefore, expects higher standards of conduct and rectitude from a Judge…It is, therefore, a basic requirement that a Judge’s official and personal conduct be free from impropriety; the same must be in tune with the highest standard of propriety and probity. The standard of conduct is higher than expected of a layman and also higher than expected of an advocate. In fact, even his private life must adhere to high standards of probity and propriety, higher than those deemed acceptable for others. Therefore, the Judge can ill-afford to seek shelter from the fallen standard in the society.”
Para 6
“The first and foremost quality required in a Judge is integrity. The need of integrity in the judiciary is much higher than in other institutions. … It is high time the judiciary took utmost care to see that the temple of justice does not crack from inside, which will lead to a catastrophe in the justice-delivery system resulting in the failure of public confidence in the system. It must be remembered that woodpeckers inside pose a larger threat than the storm outside…Judges are also public servants. A Judge should always remember that he is there to serve the public. A Judge is judged not only by his quality of judgments but also by the quality and purity of his character. Impeccable integrity should be reflected both in public and personal life of a Judge. One who stands in judgments over others should be incorruptible…Judicial service is not an ordinary government service and the Judges are not employees as such. Judges hold the public office; their function is one of the essential functions of the State. In discharge of their functions and duties, the Judges represent the State. The office that a Judge holds is an office of public trust. A Judge must be a person of impeccable integrity and unimpeachable independence. He must be honest to the core with high moral values. When a litigant enters the courtroom, he must feel secured that the Judge before whom his matter has come, would deliver justice impartially and uninfluenced by any consideration…In our view the word “gratification” does not only mean monetary gratification. Gratification can be of various types. It can be gratification of money, gratification of power, gratification of lust etc., etc.”
Para 15
“Judicial Misconduct – Showing undue favour to a party under the guise of passing judicial orders is the worst kind of judicial dishonesty and misconduct. The extraneous consideration for showing favour need not always be a monetary consideration. It is often said that “the public servants are like fish in the water, none can say when and how a fish drank the water”. A judge must decide the case on the basis of the facts on record and the law applicable to the case. If he decides a case for extraneous reasons, then he is not performing his duties in accordance with law. As often quoted, a judge, like Caesar’s wife, must be above suspicion.”
This is what I extracted from Wikipedia about judicial misconduct.
“Judicial misconduct occurs when a judge acts in ways that are considered unethical or otherwise violate the judge’s obligations of impartial conduct.
Actions that can be classified as judicial misconduct include: conduct prejudicial to the effective and expeditious administration of the business of the courts (as an extreme example: “falsification of facts” at summary judgment); using the judge’s office to obtain special treatment for friends or relatives; accepting bribes, gifts, or other personal favours related to the judicial office; having improper discussions with parties or counsel for one side in a case; treating litigants or attorneys in a demonstrably egregious and hostile manner; violating other specific, mandatory standards of judicial conduct, such as judicial rules of procedure or evidence, or those pertaining to restrictions on outside income and requirements for financial disclosure; and acting outside the jurisdiction of the court, or performance of official duties if the conduct might have a prejudicial effect on the administration of the business of the courts among reasonable people. Rules of official misconduct also include rules concerning disability, which is a temporary or permanent condition rendering a judge unable to discharge the duties of the particular judicial office.”
Now, let me list out just a few cases among many that can be clearly termed as judicial misconduct in the light of the above and based on orders and pronouncements of concerned judges and how their personal and political beliefs and associations (extraneous reasons) might have subtly or subliminally affected their sense of justice leading to ‘judicial misconduct’. In these cases ‘the Caesar’s wife is apparently not above suspicion’. We can also see that the judges intervened and issued orders that were prejudicial in letter and spirit as much as gratuitous.
Lakhimpur Kheri Case
The then CJI N.V. Ramana made a suo-moto intervention prompted by lawyers like Kapil Sibbal and others and a section of left leaning media. The unseemly intervention subverted the case in favour of violent protesters some of whom were hit by a runaway vehicle that was under attack by them. The vehicle overturned and three of its occupants, including its driver, were brutally beaten to death by protesters. The orders passed by the court were prejudicial to the accused. The court coerced Uttar Pradesh police into one-sided action. We had not seen this kind of intervention by the highest court in hit-and-run cases before. The court insisted on the arrest of a person who was not even on the spot and concluded that it was a case of brutal murder even before the investigations could take off. This was unseemly and motivated intervention amounting to judicial misconduct by all possible definitions of the phrase.
The curious case of Supreme Court and Justice Murlidharan and relief to Gautam Navlakha, the CPI (ML) Activist
It’s a prima facie case of extra-ordinary intervention to provide exceptional relief to Gautam Navlakha, a Lutyen’s Zone fixture and ideologue, who was under investigation under the Unlawful Activities (Prevention) Act (UAPA). When you have two appellate courts simultaneously adjudicating over an application for a transit remand of an accused, contested by top lawyers of the country aided by the Registrars of the Supreme Court of India and the Delhi High Court, both, you know something is amiss somewhere. The unseemly alacrity of both the courts to register the case and put it up for immediate hearing went beyond judicial overreach. It was apparently a judicial misconduct based on ideological inclinations of the judges and lawyers involved. The orders of courts exemplified inventive, creative and exceptional application of law amounting to misconduct and partiality.
The curious case of Mohammed Zubair
This started a new trend in our judicial system. Judges began to pick and choose cases ignoring the registry of the Supreme Court. A prominent lawyer would stand up in a court and ask the presiding judge to hear his case out of the order of the registry. The judge would oblige, fix the date and time of hearing and advise the registrar to adjust the list of cases accordingly. The present CJI, D.Y. Chandrachud did exactly that. He chose the case of the bail application of Mohammed Zubair at the prompting of a prominent lawyer Colin Gonsalves. He actually assigned the case to himself and began its hearing the outcome of which was obviously preordained. The last appellate court of the land not only granted bail but a kind of perpetual immunity from law to Mohammed Zubair. The judge exhibited a peculiar anxiety in ensuring that his order was followed through as if he had taken a SHAPATH before the Lord (Whoever he worships) to ensure Zubair’s release by the end of the day.
The curious case of bail to Teesta Setalvad
The constant and electrifyingly prompt intervention of the highest court of appeal in all Teesta Setlvad related cases would even shock and wake up the Kumbhkarns of our body politic out of their serene somnolence. It apparently looks like a case of ‘fraternal’ favouritism because of her lineage. She is the granddaughter of the first Attorney General of India and daughter of a celebrated lawyer who probably would have played rummy with some of the SC judges of the past and present and would have been friends with them on first name basis. Who knows the present CJI may have attended her birthday parties as well. The anxiety and alacrity of DYC in constituting one bench after another to grant bail to her while he was watching a Bharat Natyam performance and was officially on vacation, is in the least unwholesome. Someone must be keeping him abreast of the Gujarat High Court order. Was he directly in touch with her lawyers or her or anyone else acting on her behalf? Only the phone records of DYC can throw light on this. However, there cannot be a more glaring prima-facie case of brazen judicial misconduct.
Generally, prima-facie evidences are good enough for courts to order investigations and deny relief to an accused. In the four cases mentioned above, the judges concerned have clearly indulged prima-facie in judicial misconduct. They have acted partially and in some cases have gone beyond the call of duty to issue extra-ordinary and ‘uncitable’ orders granting exceptional relief to the privileged accused.
The question is who will initiate the process to investigate and prosecute when one of the judges is CJI himself? Is there any Constitutional provision other than impeachment to deal with the issue and are there precedents to guide us? If a judge is influenced by extraneous factors other than the established law and exhibits a behavioural pattern that raises questions about his ability to act impartially, what do we do with him or her?
Should the Parliament intervene? I think it must. Our beloved Prime Minister is very much concerned about the reputation of democratic institutions and thus has refrained from criticising the judiciary and its overreach, diligently following a hands-off approach. What do you do when judicial misconduct ruins the reputation of judiciary? Will you sit quietly and play the flute while watching the walls of judicial probity and integrity crumble into dust?
Rajesh Kumar Singh
khullamkhulla.wordpress.com 
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