Justice AP Shah: ‘Dangerous to attribute greater morality to judges’

Proposing a new law for judicial accountability to handle complaints of misdemeanour against judges, a continuous performance evaluation system for higher court judges and the framing of a judicial code of conduct to deal with softer accountability issues, retired Delhi High Court Chief Justice A P Shah argued for the need to strengthen mechanisms to ensure judicial accountability at the 27th Rosalind Wilson Memorial Lecture on Sunday.

“Judges do not have any pre-set moral codes embedded in their brains that dictate their behaviour the moment they sit on the bench. Indeed, they are as human as the lawyers, plaintiffs, defendants, criminals, witnesses and police before them. To attribute a greater morality to them merely because of the nature of their office is false and dangerous. They must be constantly reminded of what is appropriate behaviour throughout their career, so that the role that is cast upon them — of administering impartial justice — is never compromised. For that is the only and ultimate goal of the judiciary,” he said.

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Shah said the trigger for him choosing this subject were the allegations of sexual harassment against Chief Justice of India Ranjan Gogoi. “The entire process was shrouded in secrecy in the name of the protection of judicial independence.” he said.

However, he also stated that the mechanisms for judicial accountability should come from within the judiciary itself and not from the legislative or executive arms of government — that any committee to look into complaints under a new law should comprise only members of the judiciary and that the code of conduct should also be framed by members of the judiciary.

“Critically, in all this, the Chief Justice cannot be made an exception to the procedure, as unfortunately is the case today. Any accountability mechanism must apply to all judges, regardless of status or rank. The law and the procedure must also engage with how the Vishakha guidelines can be made applicable to the judiciary, the extent to which the right to information is allowed, and so on,” he said.

Pointing to the conflation of judicial accountability with loss of independence of the judiciary, Shah argued that judicial independence is never an end in itself but is supposed to be “enough” to aid judicial impartiality. He stated that this is rendered more necessary because of a “new judiciary” which is “like an activist, venturing into areas of policy-making and lawmaking” making it “much more a public actor than it ever was before.”