MEANING AND SCOPE OF MISBEHAVIOUR IN REMOVAL OF JUDGES: A CRITIQUE

Transcription

1 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 2017 All Rights reserved with Agradoot Web Technologies LLP Page 30

2 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, (Last visited on November 16, 2016) All Rights reserved with Agradoot Web Technologies LLP Page 31

3 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 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 INDIA CONST. art. 217, cl. 1(b). 89 JACKSON S MACHINERY OF JUSTICE, (J.R. Spencer ed., Cambridge University Press 1989, 8 th ed. 1995). 90 INDIA CONST. art. 317, cl INDIA CONST. art. 317, cl All Rights reserved with Agradoot Web Technologies LLP Page 32

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 termmisbehaviour. 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) All Rights reserved with Agradoot Web Technologies LLP Page 33

5 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, 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 illwill 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, All Rights reserved with Agradoot Web Technologies LLP Page 34

6 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, 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 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), All Rights reserved with Agradoot Web Technologies LLP Page 35

7 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), THE COMMONWEALTH, THE APPOINTMENT, TENURE AND REMOVAL OF JUDGES UNDER COMMONWEALTH PRINCIPLES: A COMPENDIUM AND ANALYSIS OF BEST PRACTICE (2015), 0Commonwealth.pdf. 106 See M.R. Madhavan, In Parliament: Judging the Judges (Dec. 6, 2010, 1:20 AM), 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) All Rights reserved with Agradoot Web Technologies LLP Page 36

8 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 J. Venkatesan, Justice Dinakaran resigns, THE HINDU (Jul. 30, 2011, 8:59 PM), Justice Sen resigns ahead of Monday s impeachment motion, THE HINDU (Sept. 2, 2011, 6:51 PM), All Rights reserved with Agradoot Web Technologies LLP Page 37

9 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), All Rights reserved with Agradoot Web Technologies LLP Page 38

10 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 V. Venkatesan, Uncles on Bench, FRONTLINE (Jan. 14, 2011), Bar Council of India Rules, 1975, Gazette of India, pt. III sec. 4 (Sept. 6, 1975), (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), All Rights reserved with Agradoot Web Technologies LLP Page 39

11 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 (India) 119 The Prevention of Corruption Act, 1988, 5(1)(e), All Rights reserved with Agradoot Web Technologies LLP Page 40

12 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), 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 All Rights reserved with Agradoot Web Technologies LLP Page 41

13 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 All Rights reserved with Agradoot Web Technologies LLP Page 42