Alexander Hamilton in the famous Federalist Papers called judiciary the ‘least dangerous branch’.

Perhaps it was then. It is not the case today. Response of the Supreme Court to the allegations of
sexual harassment against the Chief Justice of India Ranjan Gogoi has made it public in clear terms
that the protector of our rights can be the worst destroyer of it.

More than the findings of the in-house committee - the allegations may or may not have been true
– but the hasty manner in which the Supreme Court has acted is in question. The Supreme Court
at numerous occasions has pointed to several authorities that not only must justice be done; it must
also be seen to be done. However, the Supreme Court much like a preacher who doesn’t follow
his own wisdom has not been able to imbibe this virtue in itself. It would be apt to quote from
William Shakespeare’s The Merchant of Venice, “I can easier teach twenty what were good to be
done, than be one of the twenty to follow mine own teaching”.

During this entire episode, this news was covered extensively by almost all media platforms. One
would hope that the public pressure would do some good but to no avail. At this instance, it would
be reasonable to ask what was the recourse available thereafter. Perhaps nothing but impeachment,
given judicial recourse was effectively curtailed. This step is not feasible particularly when the
politicians are busy with their election campaign and one may also need to analyse whether this
counts as ‘proven misbehaviour’ under Article 124(4) of the constitution. Also, it is difficult for
the house to pass the removal motion with the cumbersome majority of both the houses and more
than two-third members present and voting. It may even not be possible to impeach the judge, and
this effectively gives a free hand to judges to act as per their whims and fancies.

Indeed, its long time that a serious thought is given to discipline the judges. A constitutional -
lacunae regarding the same exists because the constitution makers never envisaged that the judges
would be required to be disciplined. In fact, the time has belied the hopes of the constitutional
makers. Several incidents in the past have shown that impeachment has failed to serve as an
effective tool to discipline the judges. When the conduct of puisne judges had been in question,
the only recourse apart from the impeachment was withdrawal of judicial work by the Chief
Justice. However, the same cannot be done in the case of the Chief Justice as he himself is the
‘master of the roster’.

If impeachment is impractical and, in some cases, not possible, can injustice be allowed at the hand
of the judges and should the country remain helpless? No, definitely not. It is quite evident that
effective measures should exist to discipline judges without resorting to extremely time-consuming
and impractical impeachment which has till now failed to deter judges.

At this stage, it would be interesting to note the observations of Justice J Chelameswar (to which
Justice Ranjan Gogoi, as he then was the Judge of the Supreme Court, also concurred) in criminal
contempt case of Justice CS Karnan:

“The makers of the Constitution were conscious of the fact that ascendance to higher offices need
not necessarily always guarantee rectitude and the incumbent of any constitutional office could
resort to behaviour inconsistent with the nature of the office and standards of conduct expect.

… There can be deviations in the conduct of the holders of the offices of constitutional courts which
do not strictly call for impeachment of the individual or such impeachment is not feasible. Surely
there must be other ways of dealing with such cases. The text of the Constitution is silent in this
regard. Maybe it is time for the nation to debate this issue.”

Indeed, it is time for the nation to debate this issue particularly in the wake of this incident.