Justice Shekhar Yadav’s Diatribe: Impropriety Without Consequences

Once upon a time, the Supreme Court described an ideal judge as a hermit- aloof, detached, and dedicated solely to their judicial duties.

However, these words are a misfit today as media glaze and public presence have permeated the judiciary. It is fairly common to see judges in the public eye - through post-retirement interviews, lectures, or even coverage of their private visits. I believe the media cannot be blamed alone, as ultimately judges have the discretion to choose how much they want to be seen. Thankfully, the media attention also brings in necessary scrutiny on judicial conduct, occasionally exposing biases and improper behaviour that might otherwise go unnoticed.

Recently, Justice Shekhar Yadav of the Allahabad High Court delivered an extra-judicial speech that transgressed constitutional boundaries, and the decorum expected of a judge. Amongst other things, the judge expressed strong views on majoritarianism, criticised specific religious practices, and even used pejorative terms for members of a minority community. However, these remarks are merely the tip of the iceberg, as the speech as a whole raises significant concern that warrant careful reconsideration and action by the authorities responsible for judicial appointments.

In response to the speech, there have been petitions for necessary action before the Chief Justice of India and calls to impeach the Judge in Parliament. However, neither course of action appears likely to succeed. This article will first examine the speech and then highlight the inadequacies in the law to address such situations effectively.

Justice Yadav was speaking on the topic of the Uniform Civil Code (UCC), which in itself should have made him circumspect about his words. Although the UCC is a constitutional promise, and I have previously argued that discussions around it constitute an act of constitutional veneration, the situation changes when the speaker is a sitting judge. The UCC is not only debated in Parliament; courts are often called upon to adjudicate petitions concerning its enactment, implementation, and constitutional validity. Consequently, a judge might one day be required to hear a case concerning the UCC. Expressing views for or against it in advance risks undermining the public perception of judicial objectivity.

Further, Justice Yadav also commented on issues such as nikah-halala and polygamy, both of which are currently pending judicial challenges. By sharing his thoughts on these sub-judice matters, he openly discussed issues he may eventually have to adjudicate upon. At one point, he remarked “ye nahi chalega” (this will not be allowed), in a manner that made him appear less like a neutral arbiter and more like a politician with a predetermined opinion – again raising significant concerns about his impartiality.

Furthermore, Justice Yadav’s speech conveyed an evident “us versus them” narrative, where “us” represented the majority faith (Hinduism) and “them” stood for minorities, particularly Muslims. He repeatedly used phrases like “hamare yahan aisa hai” (this is how it is among us) to reference Hindu practices, juxtaposed with “aapke andar” (among you) when referring to Muslims, to highlight perceived infirmities and social issues. His tone carried an unmistakable sense of superiority and conveyed the message that one faith was inherently better than the other. This sense of superiority was further exacerbated by his use of the pejorative slang “kathmullah”. What was perhaps most troubling was the judge’s repeated insistence that he was unconcerned with how the press reported his speech, indicating an apparent disregard for the public perception of his words or their broader implications.  

A particularly overlooked aspect of Justice Yadav’s speech was his endorsement of the current government. In his conclusion, he initially remarked, “ye to main nahi kahunga ki ek rahenge to safe rahenge, warna doosri baat hojayegi” (I will not say that if we stay united, we will stay safe; otherwise, it will be interpreted differently). However, moments later, he added, “lekin isme dam hai” (but it has merit). A sitting judge endorsing a slogan associated with a political party casts a spectre over his judicial independence. Further, he also endorsed the government’s decision to abrogate Article 370.

For the sake of argument, one might be willing to grant Justice Yadav the benefit of the doubt—that he is capable of setting aside his political opinions while performing his judicial duties. However, the very foundation of the judiciary rests on the citizenry’s faith in a judge’s objectivity. Justice Yadav’s speech has significantly eroded this foundation, and its impact on judicial credibility cannot be understated.

The speech has largely elicited negative reaction and has been widely criticised as improper. However, there are also voices in support. For instance, an op-ed claims that “to reject Justice Yadav’s stance is, in effect, to reject the Constitution’s promise of equality”. In an almost hagiographical take, the piece glosses over issues such as improper slurs and political overtones, and presents a skewed understanding of judicial function, portraying the Judge as a constitutionalist. For example, the authors argue that a judge cannot stay silent in the face of established inequalities. While this is true, a judge addresses inequalities through reasoned judicial decisions, not through extrajudicial forums. Their office demands that, unlike ordinary citizens, they refrain from exercising free speech to express political or ideological opinions, as doing so risks compromising the objectivity expected of them.

Those critical of the speech have moved a motion seeking the impeachment of Justice Yadav. However, the impeachment of a Judge is exceedingly difficult to achieve. According to Article 217, a judge may be removed only on grounds of proved “misbehaviour” or “incapacity”. While these terms are not explicitly defined in the Constitution, the Justice Sawant Committee interpreted “misbehaviour” as any conduct that brings dishonour or disrepute to the judiciary and undermines public faith and confidence in it. “Incapacity,” on the other hand, refers to physical or mental inability that renders the judge unfit for office.

It is worth noting that for an impeachment motion to succeed, it must be introduced in either house of Parliament, signed by the requisite number of members, and accepted by the Chairman, who has absolute discretion in admitting the motion based on the evidence provided. Following this, an inquiry is conducted, and the motion must receive a two-thirds majority vote in both houses of Parliament. This is a tedious process, and in India’s history, no judge has ever been impeached. Consequently, it is unlikely that impeachment proceedings against Justice Yadav will succeed.

In the year 1997, the Supreme Court through a full court reference adopted a document titled ‘Restatement of Values of Judicial Life’ (‘Code of Conduct/Code’). This document laid down sixteen principles for judges of the Supreme Court and High Courts to follow in their conduct. Three principles are particularly relevant to Justice Yadav’s speech:

- The behaviour and conduct of members of the higher judiciary must reaffirm the people’s faith in the impartiality of the judiciary. Accordingly, any act of a judge of the Supreme Court or a high court, whether in official or personal capacity, which erodes the credibility of this perception, has to be avoided.

- A judge shall not enter into public debate or express his views in public on political matters or on matters that are pending or are likely to arise for judicial determination.

- Every judge must at all times be conscious that he is under the public gaze and there should be no act or omission by him which is unbecoming of the high office he occupies and the public esteem in which that office is held.

Justice Yadav’s speech clearly violated the Code. First, he publicly expressed views on matters pending before the Court (e.g., nikah halala) and on matters likely to arise for judicial determination (e.g., the legality of UCC). Second, his remarks revealed the personal views on these subjects, raising concerns about his impartiality. Third, he demonstrated a lack of sensitivity despite being in public gaze.

However, despite these clear violations, no action can be taken against Justice Yadav because the Code is merely advisory. As a result, no sanctions can be imposed for breaches of the Code. The Law Commission of India, in its 195^th Report, recommended that a violation of the Code be deemed acts of “misbehaviour” and therefore, grounds for impeachment proceedings. Unfortunately, no action has been taken on this recommendation.

The existing legal framework is inadequate to address instances of improper conduct by Judges. The threshold of impeachment is prohibitively high and the Code lacks enforceability, allowing such conduct to continue unchecked. Commenting on this lacune, Justice Ramaswamy in C Ravichandra Iyer v AM Bhattacharjee, observed that not every instance of improper conduct by a judge amounts to “misbehaviour” warranting impeachment. However, he cautioned that such conduct could have a deleterious effect on the judge’s integrity and impartiality. He noted, “When the edifice of the judiciary is built heavily on public confidence and respect, the damage caused by an obstinate judge would rip apart the entire judicial structure built into the Constitution.”

It has been reported that the Supreme Court has taken notice of this incident. However, the Court by its own admission, lacks any disciplinary authority over High Court Judges. At best, the Court might reprimand the judge’s remarks or urge future circumspection. While such a response may temporarily address the issue, it fails to resolve the larger problem of judges acting in a manner unbecoming of their office.

Over the past decade, there have been numerous instances of judicial impropriety. To uphold the dignity of the judiciary and ensure accountability, the Collegium and the Executive must consider implementing robust mechanisms to ensure that judges conduct themselves in a manner befitting their office and that any acts of misbehaviour are adequately addressed.

Swapnil Tripathi is an Advocate and a DPhil (in Law) Student, University of Oxford. He tweets at S_Tripathi07.