Members of the Upper House of Parliament, the Rajya Sabha, stood tall last week as they held a member of the judiciary accountable for his actions. Opposition leaders Arun Jaitley and Sitaram Yechury spoke well — and so did the judge in the dock and ministers of the government. Though the impeachment of Justice Soumitra Sen of the Calcutta High Court will have to await the vote in the Lok Sabha, the impressive parliamentary proceedings do raise the question whether the country has to be subjected to such elaborate proceedings before a judge can be expected to step down after being found guilty of wrongdoing by a panel of eminent jurists. The long gap between Justice Sen’s acts of commission that warranted this action and the final impeachment does point to the need for speedier procedure in the dismissal of judges as well as their appointment. Mr Jaitley and the Bharatiya Janata Party are right to demand the creation of a National Judicial Commission that would end the existing practice of allowing judges to appoint judges. The commission could include representatives of the executive and the legislature as well as eminent citizens and legal luminaries. The impeachment of Justice Sen offers both the government and the judiciary – and indeed Parliament – an opportunity to reconsider existing systems of appointment and impeachment of judges. Mr Jaitley correctly defined various “minimum qualifications” that any reasonable appointments committee can be expected to insist upon in the selection of judges. Judges must command respect based on their professional track record before they can sit on the bench that demands respects.
The historic impeachment proceeding, especially the learned intervention of the leader of the Opposition in the Rajya Sabha, is also a wake-up call for the judiciary. Much has been said in the recent past about the misplaced comments of a judge on what he dubbed “neo-liberal” economic policies. Similar examples of expressing “opinions” abound, including a lower court’s pronouncements on the Ayodhya-Babri Masjid land issue. Such ideological comments on policy, long perfected by the likes of Justice Krishna Iyer, are outside the domain of the judiciary. Many judges, like anyone with a captive audience, imagine that they can hold forth on any matter and everyone else is obliged to listen! Mr Jaitley rightly emphasised that “courts cannot have an ideology. The only ideology that courts can have is commitment to the rule of law and that law is made by Parliament”. To be sure, in India that law is made by Parliament within the bounds of the Constitution. Even so, there are limits to what judges can say or do, and it is best that each arm of the state works within its constitutional bounds. Indeed, that is the message to civil society too. Social activists, however popular and whatever the numbers they can mobilise, cannot make law. That is the privilege of Parliament alone.
