Questions about the higher judiciary’s accountability have made headlines in recent times. Judicial independence often predominates any discussion on judicial accountability. While judicial independence should be protected at all costs, judges are public officials and hence, need to be accountable to citizens. Building accountability in the judiciary requires a nuanced approach combining soft-tools with processes for vigilance and investigation. This article will discuss in detail the role of the Compulsory Retirement Order, one of the methods by which district judges are sanctioned.
Unlike the higher judiciary, the lower judiciary has a relatively clear process for vigilance. Article 235 of the Constitution enjoins a constitutional duty on the High Courts (HC) to monitor the functioning of subordinate courts. Vigilance mechanisms in the lower judiciary are governed by rules made by the state government, the High Court (HC), and judicial precedents. The HC conducts routine inspections over subordinate courts, and issues the observations through annual confidential reports (ACR).
Checks and balances in lower courts
Adverse remarks in the ACR, or complaints against a judicial officer, can culminate in a Compulsory Retirement Order (CRO) being issued to them. When an HC concludes that a member of the subordinate judicial service should be prematurely retired, it makes a recommendation in that regard to the Governor, who is bound by such a decision. The Supreme Court discussed the Fundamental Rules (FR) governing a CRO in Union of India vs Col. J.N. Sinha, and held that the “appropriate authority has the absolute power to retire a government servant if it is in the public interest to do so”. It added that a CRO will not negate the benefits accrued to a government servant prior to the CRO.
Role of Compulsory Retirement Order
The CRO is not a mechanism to create stigma, and acts as a punitive measure only if it is explicitly intended as such. The CRO is often issued in public interest. It can also be used to weed out officers who are inefficient. In Arun Kumar Gupta vs State of Jharkhand, the Supreme Court, underlined that the standard of integrity and probity expected from judicial officers is higher than other officers. It added that while reviewing CRO decisions, courts should exercise the powers of judicial review with great circumspection and restraint.
While in the case of removal by CRO on the ground of misconduct under the Central Civil Services (Classification, Control and Appeal) Rules, 1965 (CCS CCA Rules), there is an established positive act constituting misconduct. A CRO made in public interest under FR may simply be for severe inaction, lethargy or failure to perform duties effectively. The level of culpability in misconduct is far greater than that in inefficient conduct, yet the CRO is used in both scenarios. The determination of whether or not the retirement is in public interest is a discretionary call made solely by the appropriate authority.
Often the principles of natural justice have no application in such situations. In many instances, the appropriate authorities choose to issue a CRO using the Fundamental Rules because this allows dispensing with all the procedural safeguards provided under the CCA CCS Rules, like the showing of good and sufficient reasons, providing an opportunity to defend oneself against allegations, etc. The scope to challenge a Compulsory Retirement Order is limited, and this allows for unfettered discretion.
Defining public interest
There needs to be clear parameters on what constitutes ‘public interest’. Further, if CROs are made in public interest, the public should have a right to know the details of the proceedings that have resulted in such action. The citizens have access to inquiry reports against civil servants under the Right to Information Act, 2005 but the judiciary in India has precluded itself from disclosing information about inquiries against judges, insisting that such disclosure will impede the proper functioning of the court as an independent authority.
While the option of a CRO can strengthen institutional accountability, the modus operandi of issuing the same may impact individual accountability of the judges. Senior officers are vested with wide discretion in the absence of clear parameters defining ‘public interest’. Sometimes junior officers may try to appease their seniors for favourable reviews. CROs, in their current form, do not accomplish the purpose of serving as a major penalty for wrongdoings by judicial officers. CROs are not punitive by default and have no civil consequences, and this culminates in it having little or no deterrent effect.
Therefore, the need of the hour is to make the enquiry and adjudication process for judicial misconduct transparent through increased public disclosure of the details of such wrongdoing. In addition, consequences such as prohibition from future employment at a public office, or striking the name of the erring officer from the profession should be considered. As Harish Narasappa rightly argues in his book Rule of Law in India: A Quest for Reason, the lack of transparency in investigating the judiciary while relying on judicial independence adversely impacts rule of law. Judges are not truly independent if they are not ethical. Yet, an ethical norm needs to be strictly enforced.
DAKSH partners with ThePrint to write about necessary reforms to the functioning of India’s subordinate judiciary. Read all the articles in the series here.