MEANING AND SCOPE OF ‘MISBEHAVIOUR’ INiclrq.in/editions/jan/4.pdf · This research paper...

INDIAN CONSTITUTIONAL LAW REVIEW: EDITION I (JANUARY 2017)

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MEANING AND SCOPE OF ‘MISBEHAVIOUR’ IN

REMOVAL OF JUDGES: A CRITIQUE

Jayant Singh

National Law School of India University, Bengaluru

ABSTRACT

The Indian judicial machinery, especially the superior courts, enjoy considerable respect from the

people of India for impartial of justice. However, occasional allegations of involvement of judges in

unethical acts has threatened this very reputation that the judges enjoy. The Constitution of India

provides for removal of judges under Articles 124(4) and 217(1)(b). The present understanding of

misbehaviour is biased in favour of judges and makes removal of judges on valid grounds highly

unlikely. This research paper critically analyses and comprehensively explores the meaning and scope

of misbehaviour in context of removal of judges. It further examines the Constitutional provisions for

removal of judges of superior courts in light of past instances.

Inclusion of provision of misbehaviour was inspired by the Australian Constitution as is explicit in the

Constitutional Assembly Debates. However, the Constitution does not define the meaning of the term.

In sixty-six years of working of this Constitution, no judge has ever been removed from office. All the

three instances when they were sought to be removed, it was only with respect to financial misdoings

of such judges. However, one instance involving Justice Asok Kumar Ganguly and the other involving

a judgment of Allahabad High Court in Raja Khan v. U.P. Central Sunni Waqf Board seems to indicate

that current understanding of misbehaviour as a ground of removal of judges needs to be re-examined.

It is argued that our current understanding of misbehaviour with respect of removal of judges needs to

be widened to include those aspects which traditionally have failed to get sufficient attention of both

legislature and judiciary. Unwelcome sexual behaviour and favouritism are two of myriad aspects that

can be covered under this head. A relook at the present provisions and formulation of clear cut

guidelines would be a good place to start.

INTRODUCTION

The independence and integrity of the judiciary has always formed a vital element in the

functioning of the Indian democracy. It is said that it commands respect in the public not

because of its purse or its sword but because of high standards of integrity that the occupiers

of judicial offices maintain. However, some judges have been allegedly involved in instances

that can validly constitute misbehaviour. These instances have seriously cast a shadow on the

prestige of judiciary. Of late, the subject of removal of judges of superior courts of the country



has captured national attention. In this context, a look into the constitutional provisions in

regard to the removal of Judges would be a worthwhile task.

The researcher would like to explore the meaning of misbehaviour as it appears in Art. 124(4),

both in an isolated manner to understand the literal meaning of the term. He will then delve

into the constitutional provisions relevant for the correct understanding of the term. Origins of

the term will be traced with the help of Constituent Assembly Debates as well as constitutional

provisions of other countries which have parallel provisions.

The researcher will then look into the Constitutional basis of three instances where the judges

of appellate courts came close to their removal on the basis of the grounds mentioned in Art.

124(4). The reasons why these occupants of high offices escaped removal ever after being

center of some grave allegations will also be given due importance. Grounds other than what

have already been used to incriminate will be pondered upon in light of recent incidents that

did not attract much critical eyes but definitely raise question as to whether misbehaviour

consists of definite actions and omissions or is it an elastic term. In the next part, the scope of

this term will be analysed. Lastly, common- man’s understanding of misbehaviour will be

explored.

MEANING OF ‘MISBEAHVIOUR’

This part of the paper attempts to explore and discuss any connotation of the term misbehaviour

in the Indian Constitution, if there is any. In order to get a better understanding of what the

term means, the researcher will first try to understand the meaning when misbehaviour is used

in an isolated manner and then proceed to the meaning that can be attributed to the term when

it is applied in the relevant context.

Simply put, the term refers to ill conduct; improper or unlawful behaviour.87 Liberal use of the

terms can give it a lot of connotations. Every person occupying a public office is expected to

display certain amount of decency and responsibility in his conduct. The higher the office a

person holds, the greater the expectations of a common man from him. A judge of a superior

court is expected to be responsible in his actions that he does in his official capacity. Even his

private actions do not escape media scrutiny. However, this paper is concerned with

misbehaviour as used in Art. 124(4) of the Indian Constitution which provides for the grounds

87 Misbehavior, Black’s Law Dictionary, http://thelawdictionary.org/misbehavior/ (Last visited on November 16,

2016).


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for removal of judges of the Supreme Court. The same grounds are provided for the removal

of judges of High Courts across the country.88

The word misbehaviour used in Art. 124(4) embraces within its sweep facts of misconduct.

Guarantee of tenure to a judge and its protection by the Constitution does not mean giving

sanctuary for corruption or grave misbehaviour. Judiciary survives on public confidence.

Misbehaviour, whether it is on or off the bench, undermines public confidence in the delivery

of justice. It also lowers public respect for the lex loci in the eyes of public. If nothing is done

about it, damage goes unrepaired. Finally, it will lead to complete loss of faith in the

administration of justice.89

The power of removal of judges of superior courts has been conferred upon the Parliament by

the Constitution, the procedure for which has been mentioned in Art. 124(4). However, the

expression proved misbehaviour has not been defined anywhere in the Constitution. The only

place in the entire text where the term misbehaviour gets a mention is with regards to the

removal of a member of a Public Service Commission.90 However, some differences exist in

the meaning that the constitution makers intended to attribute to the term used in Art. 317 and

in Art. 124. A member of Public Service Commission can be removed if the Supreme Court,

on a reference by the President, conducts an inquiry into the matter according to the procedure

mentioned in Art. 145; finds it appropriate that the member against whom such proceedings

have been initiated be removed from the office and reports its findings to the President. On the

other hand, an address is to be made in both the Houses of Parliament for removal of a sitting

Supreme Court or a High Court judge. He can be removed from his office only if both the

Houses support such an address by a majority of the total membership of the house and by a

majority of at least two- third members of the House present and voting. The President is then

presented with this address. Ground of misbehaviour used in Art .317 is attracted if:

[A member] is or becomes concerned or interested in any contract or agreement

made by or on behalf of the Government of India or the Government of a State or

participates in any way in the profit thereof or in any benefit or emolument arising

therefrom otherwise than as a member and in common with the other members of

an incorporated company.91

88 INDIA CONST. art. 217, cl. 1(b). 89 JACKSON’S MACHINERY OF JUSTICE, 369-370 (J.R. Spencer ed., Cambridge University Press 1989, 8th ed.

1995). 90 INDIA CONST. art. 317, cl. 1. 91 INDIA CONST. art. 317, cl. 4.



This provision deals particularly with inability that a member may face in performance of his

duties due any monetary benefits that he might draw by having such an interest. No such

provision appears in Art. 124 but one may safely incorporate this meaning to the elastic term-

misbehaviour.

Thus, it is clear that procedure for removal of any judge of a superior court has been made more

difficult than that of a member of a Public Service Commission. That all the constituents of

this lengthy procedure have to be fulfilled in the same session of the Parliament makes

successful completion of the proceedings even tougher.

In absence of any provisions explicitly stating what the term entails, a need to examine other

secondary sources that might shed some light on this expression arises.

DISCUSSION IN THE CONSTITUENT ASSEMBLY

A situation like this where a particular term has neither been discussed in detail anywhere in

the Constitution nor is there any practice of taking support of illustrations in the Country’s

fundamental document clarifying what a particular term may take within its fold, requires one

to explore to the making of the Constitution itself to understand why the Constitution makers

skipped an opportunity of explaining the meaning of a term that has imposed a significant

influence in deciding whether a judge is worthy of continuing to be in charge of playing a

decisive role in solving several problems that the Country and its citizens face day in and day

out.

In the Constituent Assembly Debates, while deciding the age of retirement of the judges, K.T.

Shah, taking a cue from the practice existing in the England, suggested that the judges should

continue in their office during good behaviour.92 However, M.A. Ayyangar noted that such an

idea should be incorporated in a provision for removal of judges, grounds for which, he

suggested, were to be proved misbehaviour or incapacity. 93 He understood it to mean that such

an eminent person was not wanted as a judge of the Supreme Court whose tenure could even

remotely be linked even at the outset to any suspicion that he may be guilty of misbehaviour.

The term suspicion used in the debates shows that the Constitution makers wanted extremely

high standards of integrity from the persons deciding the most important cases in the country.

92 Statement of K.T. Shah, CONSTITUENT ASSEMBLY DEBATES 37 (May 24, 1949). 93 Statement of M.A. Ayyangar, CONSTITUENT ASSEMBLY DEBATES 143 (May 24, 1949).



AUSTRALIA

The concept of good behaviour as mentioned in the debates seems to have been inspired from

the Australian Constitution. Australia has a similar provision for removal of the judges of its

Apex court and other courts created by its Parliament. The judges there are removed by the

Governor- General in Council, on an address from both Houses of the Parliament in the same

session on grounds of proved misbehaviour or incapacity.94

UNITED KINGDOM

In common law, tenure during good behaviour was terminated by misbehaviour. The early

Common law does not define misbehaviour in so many words; rather it lays down the several

grounds for forfeiture of an office; but these are interrelated if not equivalent. Sir Edward Coke

specified three causes for forfeiture or seizure of office of any highly placed public official, as

abusing, not using or refusing.

The current procedure of removal of judges of the Supreme Court of the United Kingdom is

mentioned in the Constitutional Reform Act, 2005. The relevant section provides for an

occasion for the removal of a judge who may, in consequence of misbehaviour, etc., have lost

the confidence of the both houses of Parliament. A judge holds his office during good

behaviour as against the crown; in relation to the Parliament.95 The parliament may provide a

content for good behaviour to include anything which might tend to lower the dignity of the

judicial office. However, such an action has been left to the convention and practice and no

grounds have been explicitly mentioned in the Act. It is worthy to note that good behaviour

means a behaviour which is good in and for the office a person holds, such as worthy bearing

and honesty in the office, carrying out its duties when called upon to do so, in absence of ill-

will and negligence in relation to them and of any conviction incompatible with the public

confidence which the office is intended to serve, and so on.96

UNITED STATES OF AMERICA

The claim of the USA judiciary that “impeachment and conviction of treason, bribery, or other

high crimes and misdemeanors” 97 are the exclusive ways for removal of federal judges rests

on the proposition that hold their offices during good behaviour affords them special insulation

94 Australian Constitution s 72(ii).

95 Constitutional Reform Act, 2005, § 33. (Eng.) 96 W.P.M.K., Removal and Tenure of Judges 6(2) THE UNIVERSITY OF TORONTO LAW JOURNAL 463, 465 (1946). 97 U.S. CONST. art. II, § 4.



from removal except through impeachment.98 Although the misbehaviour is common ground

for removal of officials on the top rungs on the ladder of any State institution, James Bryce

cautioned against frequent use of impeachment. In his words, “impeachment is so heavy a piece

of artillery as to be unfit for ordinary use.”99 It needs to be emphasised here that the grounds

for removal should be used so carefully as not to entangle any judge guilty of misdemeanour

in its web, putting unnecessary strain on him in the process.

An instance of interest here may be the initiation of impeachment proceedings against Justice

William O. Douglas for high crimes and misdemeanours. Apparently aware that the alleged

misconduct may fall short of high crimes and misdemeanours, Congressman Gerald Ford

maintained that impeachment comprehends departures from good behaviour. If judges are

removable only by impeachment, as Justice Douglas asserted and if high crimes and

misdemeanours does not include all acts constituting misbehaviour, it follows that judges guilty

of misbehaviour not amounting to impeachable misconduct are sealed into office,

notwithstanding the understanding of the common law that tenure during good behaviour is

terminated by bad behaviour.100

The question that arises here is whether impeachable offences- high crimes and

misdemeanours, embrace all infractions of good behaviour. James Madison viewed that the

power of removal was a necessary correlative of the power of appointment. Impeachment,

however, Madison explained, had a special purpose; it was designed to reach a bad officer who

may be sheltered by the President, who could be removed even against the will of the

President.101 High crimes and misdemeanours is a term less definite. It is generally used to

cover offences not given a particular name by law.102 Indian position on what constitutes an

appropriate standard to remove the judges from superior judiciary has been dealt with in the

chapter concerning scope of misbehaviour.

Art. 18 of the United Nations Basic Principles on the Independence of the Judiciary states that

“judges shall be subject to removal only for reasons of incapacity or behaviour that renders

them unfit to discharge their duties.”103 Further, Commonwealth (Latimer House) Principles

discuss “incapacity or misbehaviour that clearly renders them unfit to discharge their

98 U.S. CONST. art. III, § 1. 99 2 JAMES BRYCE, AMERICAN COMMONWEALTH 233 (1995). 100 R. Berger, Impeachment of Judges and “Good Behaviour” Tenure 79(8) THE YALE LAW JOURNAL 1475, 1476

(1970). 101 Id, at 1491. 102 David Y. Thomas, The Law of Impeachment in the United States, 2(3) THE AMERICAN POLITICAL SCIENCE

REVIEW, 378, 379 (1908). 103 UNITED NATIONS OFFICE OF THE HIGH COMMISSIONER, BASIC PRINCIPLES ON THE INDEPENDENCE OF THE

JUDICIARY (1985), http://www.ohchr.org/EN/ProfessionalInterest/Pages/IndependenceJudiciary.aspx.



duties.”104 It is well established that the findings of any commission that may have been

appointed in order to look into allegations against the judge concerned should not take into

consideration the content of the rulings, verdicts, or judicial opinions, judicial mistakes or

criticism of the courts.105

The Indian Constitution provides for a provision which has enabled the Parliament to pass

Judges (Inquiry) Act, 1968 for regulating the procedure for the investigation and proof of the

misbehaviour of a judge under Art. 124(5).

THE INDIAN EXPREIENCE

In the recent past, people have come to realise that the system of removal of judges provided

in the Constitution is of no real value. Much of it can be blamed on the need to get the motion

for removal signed by not less than a hundred members of Lok Sabha or fifty members of Rajya

Sabha, which many consider to be an impossible task in itself,106 unless one already has

unimpeachable evidence proving the guilt of the judge. In most cases, collection of indicting

evidence is not possible unless an independent body takes charge. When a judge is not removed

through this process but his conduct generates a mood of dissatisfaction in public, the question

one needs to ask is this: who would ask the judge to demit the office in grace? The answers

can be found once the past experience in such cases is analysed.

In the V Ramaswami case of the late 1980s, 107 inconsistencies were found in an audit done

regarding purchases made for the High Court. The evidence necessary to frame Ramaswami

was present in the report. He was tried by a committee of three judges appointed by the Lok

Sabha speaker, who found him guilty. However, he escaped any consequences because the

party in power decided to abstain from voting on the motion.108 Existence of conflicting

interests is evident from the fact that Kapil Sibal argued his case in front of the Supreme Court.

104 THE COMMONWEALTH, COMMONWEALTH (LATIMER HOUSE) PRINCIPLES (2004),

http://thecommonwealth.org/sites/default/files/history-items/documents/LatimerHousePrinciples.pdf. 105 THE COMMONWEALTH, THE APPOINTMENT, TENURE AND REMOVAL OF JUDGES UNDER COMMONWEALTH

PRINCIPLES: A COMPENDIUM AND ANALYSIS OF BEST PRACTICE (2015),

http://thecommonwealth.org/sites/default/files/press-

release/documents/Compendium%20on%20Judicial%20Appt%20Tenure%20and%20Removal%20in%20the%2

0Commonwealth.pdf. 106 See M.R. Madhavan, In Parliament: Judging the Judges (Dec. 6, 2010, 1:20 AM),

http://pragati.nationalinterest.in/2010/12/in-parliament-judging-the-judges/. 107 K. Veeraswami v. Union of India, (1991) 3 SCC 655. (India) 108 M. Mitta & Z. Agha, Congress’ Albatross, INDIA TODAY (August 21, 1993, 2:05 PM)

http://indiatoday.intoday.in/story/justice-v.-ramaswami-survives-impeachment-motion-due-to-abstention-of-

congressi-mps/1/302273.html.



Judicial accountability problem has been increased further by judgment in Veeraswami case,

where the Supreme Court decided that prior written consent of the Chief Justice of India is

mandatory for any proceedings regarding prosecution of a judge of any High Court or the

Supreme Court to be initiated in the Parliament.109 The Veeraswami case still holds good on

the judicial side.

Another such instance came to the light in 2009 when it was alleged that P.D. Dinakaran,

former Chief Justice of Sikkim High Court had accumulated disproportionate assets and was

involved in land acquisitions in Arrakonam-his hometown, more than what was fixed by the

Tamil Nadu Land reforms. A motion was admitted in Rajya Sabha by its chairman in December

2009 seeking his removal on the charges of corruption and abuse of his office. However before

the proceedings could be completed even in one house, he tendered his resignation citing lack

of faith and confidence in the three- member inquiry committee probing the charges against

him.110 Thus, he managed to get post- retirement benefits even before the proceedings could

be completed and the allegations could be formally proved. The most recent case of

misbehaviour that caught the public imagination was that of Soumitra Sen, former judge of the

Calcutta High Court.

Justice Sen was accused of misappropriating rupees thirty-three lakhs a 1993 dispute between

Steel Authority of India and Shipping Corporation of India over supply of fire bricks. In 2009,

fifty-eight M.Ps of the Rajya Sabha moved a motion for his removal. The three- member

committee, opined that Justice Sen was guilty of corruption and hence misbehaviour under Art.

124(4) read with proviso (b) to Art. 217(1), the Constitution of India. Sen decided to put in his

papers on September 1, 2011, after the motion was successfully passed in the Rajya Sabha and

was to be taken up in the Lok Sabha.111

These three episodes of unsuccessful attempts at removal of judges demonstrate that it is

common for judges facing scrutiny to resign pending removal proceedings once they are clear

that the motion has high probability of being passed by both the houses. Besides this, all the

three prominent cases mentioned above were instances where the judge in question had

amassed or misappropriated wealth disproportionate to his known sources of income. This is

109 Veeraswami, (1991) 3 SCC at 655. 110 J. Venkatesan, Justice Dinakaran resigns, THE HINDU (Jul. 30, 2011, 8:59 PM),

http://www.thehindu.com/news/national/justice-dinakaran-resigns/article2305932.ece. 111 Justice Sen resigns ahead of Monday’s impeachment motion, THE HINDU (Sept. 2, 2011, 6:51 PM),

http://www.thehindu.com/news/national/other-states/justice-sen-resigns-ahead-of-mondays-impeachment-

motion/article2417401.ece.



perhaps because only financial wrongdoings of the most severe nature are brought into public

knowledge while wrongdoings of any other character go unnoticed.

THROUGH A LAYMAN’S LENS

The high status that the judiciary enjoys in India is mainly because of conduct of the

predecessors of the present occupants of the post. While judiciary has, for most part, enjoyed

a certain measure of immunity from criticism, it is important that judiciary retains its special

place that it has carved for itself over the years. For this it is relevant to analyse what a common

man thinks is the fine line that separates an acceptable behaviour from the non- acceptable one.

As mentioned elsewhere, the instances mostly reported against judges on the grounds of

misbehaviour are limited to misappropriation of the funds and land grabbing. However, an

incident took place in 2013, involving retired judge of Supreme Court Justice A.K. Ganguly

where a female intern alleged that Ganguly, while serving as the Chairman of West Bengal

Human Rights Commission, had sexually harassed her. A fact finding committee consisting of

three sitting judges of the Supreme Court, headed by Justice Sathasivam found a ring of truth

which prima facie disclosed an act of unwelcome sexual behaviour. However, he did not have

to face any further proceedings in the Supreme Court as it has no administrative control over a

retired judge.112

It is quite dismaying to any concerned citizen of the society to watch a person walk away with

impunity after being indicted by a panel of the apex court, all because of the influence he

exercises as a retired judge of the country’s apex court. The charges, serious offences under

Indian Penal Code, if proved could have landed him in much trouble. A question arises out of

this issue: Can unwelcome sexual advances be considered as coming within the purview of

misbehaviour as used in Art. 124(4)? India is committed protect the rights of women and has

signed treaties such as Convention on the Elimination of Discrimination against women to

advance the rights of women. Further such acts are considered punishable offences under IPC.

In such a scenario there exists no visible reason for excluding such acts from the class of acts

constituting misbehaviour. It is quite ironical that the person charged with protection of man’s

most fundamental rights committed such a gross violation of the basic rights of the intern. Here,

the researcher proceeds on the belief in the veracity of panel’s findings. Further, this impunity

112 Dhanahjay Mahaptral, Justice Ganguly showed ‘unwelcome’ sexual behaviour towards law graduate: SC

panel, THE TIMES OF INDIA (Dec. 6, 2013, 3:04 AM), http://timesofindia.indiatimes.com/india/Justice-Ganguly-

showed-unwelcome-sexual-behaviour-towards-law-graduate-SC-panel/articleshow/26925519.cms.



will encourage sitting judges to proceed in their office in any manner as they want hoping that

they too are insulated from scrutiny of any sort.

On November 26, 2010, the Supreme Court heavily lambasted the Allahabad High Court by

saying that “there is something rotten in the Allahabad High Court”113 and it “needs some

house cleaning.”114 It is understood that several judges in the Allahabad High Court have been

passing orders in favour of parties whose counsels are known to them. Since judges refer to

each other as brother judges, they become uncle judges to kin of other judges.115 The Bar

Council of India Rules, 1975, mandate that a judge’s kin cannot practise in the same court. It

also makes it obligatory that no lawyer can practise in a court where any of his relatives is a

judge.116 However, the term court mentioned in the Rule has not been clearly defined

anywhere, so ambiguity exists as to whether the term refers to only to the court of that particular

judge or the whole court where the relative is a judge.

In the Waqf Board case, Allahabad bench of the High Court had heard a case which was within

territorial jurisdiction of Lucknow. Secondly, it decided on a writ petition against Waqf board

when no writ petition is ordinarily maintainable against a private body. Further, the Supreme

Court criticised the High Court’s interim orders, which granted final relief to the defendant.

This case is just one of many instances where counsel for one party to the dispute exercises its

influence to get a favourable outcome even when a particular court has no jurisdiction to decide

that case. The counsel exercising such an influence can be punished for professional

misconduct as the Bar Council of India Rules mandate but it is quite astonishing that there is

no provision for punishing the judge hearing the case and deciding in favour of one party on

considerations extraneous to law. It is highly surprising that the Supreme Court stopped with

just admonition. This debate has recently been revived when senior advocate Fali S. Nariman

appeared before his son Justice Rohinton Nariman to argue a case.117

SCOPE OF ‘MISBEHAVIOUR’

113 Raja Khan v. U.P. Central Sunni Waqf Board, (2011) 2 SCC 741, 741. (India) 114 Id. at 745. 115 V. Venkatesan, ‘Uncles’ on Bench, FRONTLINE (Jan. 14, 2011),

http://www.frontline.in/static/html/fl2801/stories/20110114280103900.htm. 116 Bar Council of India Rules, 1975, Gazette of India, pt. III sec. 4 (Sept. 6, 1975),

http://www.barcouncilofindia.org/wp-content/uploads/2010/05/BCIRulesPartVonwards.pdf (forbidding an

advocate from appearing, pleading or practising before a court, tribunal or Authority mentioned in Sec. 30 of the

Advocates Act if its member is related to him as relations defined in the rule). 117 See K. Chandru, Father, son and the holy Court, THE HINDU (Oct. 24, 2014, 2:41 AM),

http://www.thehindu.com/opinion/op-ed/father-son-and-the-holy-court/article6528282.ece.



Under the Constitution, members of certain services or persons holding certain posts hold their

office at pleasure. These include the offices of the Attorney General who holds office during

the pleasure of the President and the Advocates General of the States who hold office during

the pleasure of the Governors. However, persons holding high judicial offices do not do so.

Thus, it is necessary to strike a fine balance between the autonomy of such judges within the

constitutional boundaries and public perception that the judge given with the power of

resolving the disputes is actually a person worthy of such task.

Supreme Court has explained that error in judgment, however gross, cannot amount to

misbehaviour.118 Where a judge erred in decision making and failed to apply the standards of

judicial reasoning which are considered as accepted or correct in judicial decision making, he

cannot be punished for that mistake. Remedy for such an error exists in form of appeals, not in

removal of such a judge. However, wilful abuse of the powers, misconduct while in office,

corruption of any kind, lack of integrity or any other offence involving moral turpitude would

be misbehaviour.

Prevention of Corruption Act defines criminal misconduct to include possession of pecuniary

resources or property disproportionate to known sources of income for which the person cannot

provide satisfactory account.119 It is submitted that standard of proof needed to initiate

Parliamentary proceedings should be lesser in case of a Judge of a superior court because higher

the office, lower the threshold of proof needed to remove him. Here, removal does not mean

conviction in a court of law. Further, the term crime is nowhere to be found in Art. 124(4).

Application of standards applicable to crimes would be an illogical move per se. So, a prima

facie case against him should be sufficient to start proceedings under the relevant provisions.

When an individual is administered oath to such a high office, he is expected to maintain an

impeccable character. Further, judge of higher judiciary wields enough power to not allow

evidence indicting him to see the light of day. It has been observed that indicting such a person

requires greater seriousness of the proof for initiation of proceedings than what would have

been required to incriminate a common man of the same offence.

Judges (Inquiry) Rules were passed in 1969 along with Judges (Inquiry) Act, 1968 in exercise

of the powers conferred by Sec. 7(4) of the Act. Rule 6 allows the accused judge to object to

the charges framed against him in writing and the charges may be modified if the objection is

sustained by the majority of the Inquiry Committee. However, if the judge admits his guilt, his

118 C.K. Daphtary v. O.P. Gupta, AIR 1971 SC 1132. (India) 119 The Prevention of Corruption Act, 1988, § 5(1)(e),

http://persmin.nic.in/DOPT/EmployeesCorner/Acts_Rules/PCAct/pcact.pdf



admission will be stated as a part of the findings of the Committee. The inquiry continues if

the judge pleads to the contrary. Rule 9(2)(a) provides that report of the Committee is to be

forwarded to the Speaker or Chairman of the House that constituted it within a period of three

months from the date on which charges were first framed. An authenticated copy of the report

is then laid before each House of Parliament.120

The word proved suggests that conviction for a serious offence must also be treated as a

misbehaviour, whether that amounts to an official misconduct or not.121 In general, it would

include any form of misconduct which would significantly lower public confidence in the

holder of the office. The Supreme Court, assuming at least some integrity on part of the judge

accused of misbehaviour, was of opinion that if a judge is convicted for the offence of criminal

misconduct or any other offence involving moral turpitude, he must voluntarily keep himself

away from the court.122 Further, if sentenced in a criminal case, the judge should his

resignation. However, most of the judges smeared by allegations would prefer to wait for

adoption of a motion by the Parliament because misbehaviour is deemed to be proved only

when the President orders to this effect after the Parliament passes such a motion.

CONCLUSION

While the meaning of incapacity in the context of removal of judges may be taken to be

reasonably clear, that of misbehavior is not. Descriptions of misconduct include gross and

grievous neglect of duty, partiality in delivering judgment, misconduct involving moral

turpitude, corruption etc. It is evident that misconduct may occur both in the performance of

the judge’s judicial duties and in his or her private life. Any behaviour that tends to undermine

the standing of the courts or a particular judge’s credibility may have a seriously damaging

effect on the public confidence in the judiciary. Therefore, it is necessary to understand what

the word misbehaviour clearly entails.

Constituent Assembly Debates show that a judge should continue in his office during good

behaviour but is expected to vacate the office if he or she is found guilty of any act that goes

against the dignity of the office. Decisions of the Supreme Court have cleared the air around

120 Rule 7(1), Judges (Inquiry) Rules, 1969, Gazette of India, pt. II sec. 3 (Sept. 8, 1969),

http://doj.gov.in/sites/default/files/Judg-Enq-Rules-1969_0.pdf 121 4 DURGA DAS BASU, COMMENTARY ON THE CONSTITUTION OF INDIA, 5596 (Chunilal Karsandas Thakkar et

al. eds., 9th ed. 2009). 122 Veeraswami, (1991) 3 SCC at 678.



misbehaviour to some extent but it has repeatedly refrained from delving too much on the issue.

Traditionally, it has restricted itself to monetary aspect of the term which may include, but is

not limited to, misappropriation of funds meant for development of court complexes, land

grabbing, corruption etc. Of late it has ventured into other issues like sexual harassment but

with little success. Lack of conviction among the legislators can be partly be blamed for corrupt

judges walking away with impunity. Lack of clear guidelines as to what constitutes

misbehaviour will take the other share.

In the paper, the researcher has tried to explore the meaning of misbehaviour as it appears in

the Indian Constitution along with the prerequities like proved and in the same session.

Common man’s understanding of term has been tried to be brought out through this paper. In

conclusion, the researcher submits that while it may not be feasible to define an elastic term

like misbehaviour in concrete words, an endeavour needs to be made to acknowledge those

aspects of the term that have traditionally not been part of discussion in the public sphere

questioning integrity of judges.

MEANING AND SCOPE OF ‘MISBEHAVIOUR’ INiclrq.in/editions/jan/4.pdf · This research paper...

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