Despite being indicted by an 'in-house inquiry panel' constituted by the CJI, there's no whisper in the corridors of the House on his eventual impeachment.
Corruption in higher judiciary is an issue that has been a raging wildfire in the desiccated forest of Indian public discourse. However, in the din and noise on the possible impeachment of Chief Justice of India Dipak Misra, what has been conveniently pushed under the carpet is the urgent need to remove Justice Narayan Shukla of the Allahabad High Court.
In Tarak Singh vs. Jyoti Basu (2005) 1 SCC 201, the Supreme Court held that the integrity is the hallmark of judicial discipline, apart from others. It is high time the judiciary takes utmost care to see that temple of justice does not crack from inside, leading to catastrophic failure in the justice delivery system and crumbling public confidence in the system. The apex court also cautioned that "woodpeckers inside pose a larger threat than the storm outside". These observations of the Supreme Court are worth revisiting in the present context with regard to the credibility crisis affecting none other than the highest judicial institution in the country, which has, in turn, called into question the very integrity and independence of the judiciary.
Parliamentarians have been vested by virtue of Article 124(4) and (5), read with Article 218 of the Constitution, with the authority to initiate removal proceedings against a judge of the Supreme Court of India and that of the High Court. Parliament enacted the Judges (Inquiry) Act, 1968 in views of the Article 124(5) of the Constitution, which says that Parliament may by law regulate the procedure for the presentation of an address and for the investigation and proof of the misbehaviour or incapacity of a Judge under clause (4).
Clause (4) of Article 124 reads as follows:
"A Judge of the Supreme Court shall not be removed from his office except by an order of the President passed after an address by each House of Parliament supported by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present and voting has been presented to the President in the same session for such removal on the ground of proved misbehaviour or incapacity."
Article 218 provides for the applicability of Article 124(4) & (5) on the judges of the High Court. Under the Judges Inquiry Act of 1968, a notice for presenting an address to the President for removing a judge has to be signed by 100 members of the Lok Sabha and submitted to the Speaker. A similar notice can also be signed by 50 members of the Rajya Sabha and submitted to the Chairperson of the House. If the Speaker or the Chairperson admits the motion, he or she must appoint a three-member committee comprising the CJI or a sitting judge of the Supreme Court, a sitting Chief Justice of a High Court and an eminent jurist. The committee then takes over and investigates the charges of misbehaviour against the judge. It is only once this committee finds the judge guilty of any charge that either house can pursue the motion.
Needless to say that entire process of removal of a judge is both cumbersome and political. This is precisely the reason why so far no judge has been removed from his office, though there have been occasions when two High Court judges and a Supreme Court justice were sought to be impeached. In all cases, either the motion could not get the two-third majority support to present the address to the President, or the concerned judge resigned thereby making the entire process infructuous.
Unfortunately, in the case of Justice Narayan Shukla of Allahabad High Court, the Parliamentarians have not even set impeachment process in motion, which clearly amounts to abdication of responsibility cast upon them by the Constitution.
Justice Shukla is due to retire on July 17, 2020, and was indicted by an "in-house committee" comprising Madras High Court Chief Justice Indira Banerjee, Sikkim High Court Chief Justice S K Agnihotri and Madhya Pradesh High Court's Justice P K Jaiswal. They found him "guilty of misconduct". He was under the scanner for allegedly granting permission to a private medical college to admit students despite a ban by the Medical Council of India being in place, as well as the Supreme Court forbidding such admissions from de-licensed private medical colleges.
Acting on the report submitted by in-house inquiry panel, the Chief Justice of India Dipak Misra, in terms of Clause 7(ii) of the in-house Supreme Court Resolution of 1997, wrote on February 02, 2018 to the President of India, with a copy marked to the Prime Minister, seeking Justice Shukla's removal from office. Before approaching to the President, the CJI even advised the concerned judge to resign, but he strangely refused to do so. CJI then advised the Chief Justice of the Allahabad High Court not to assign any judicial work to the concerned judge. Since then the judge, though still in office, has been divested of any judicial work.
One may recall that the then CJI K G Balakrishnan, acting upon the report of in-house inquiry panel, had written to the then Prime Minister Manmohan Singh seeking removal of Justice Soumitra Sen who was found guilty of misappropriation of money which brought disrepute to the high judicial office and dishonour to the institution of judiciary, undermining the faith and confidence reposed by the public in the administration of justice.
Former Prime Minister Singh was quick to bring the letter dated August 04, 2008 of the then CJI to the notice of Members of Parliament cutting across party lines. Acting on the letter of then CJI, Rajya Sabha MPs belonging to different political parties signed on the "Notice of Motion" to remove Justice Sen. Prominent leaders namely Arun Jaitely and Sushma Swaraj too were signatories to the said motion and they presently happen to be Cabinet Ministers. The then Chairman of the Rajya Sabha, upon the said motion was admitted, constituted three-member inquiry committee and thereby set the removal process in motion.
It might also be worth recalling here that the then UPA-I government had introduced in the Lok Sabha The Judges (Inquiry) Bill, 2006 – a fresh Bill which, had it been passed, would have replaced the existent Judges Inquiry Act, 1968. The 2006 Bill provided for establishing a National Judicial Council to conduct inquiries into allegations of incapacity or misbehaviour by High Court and Supreme Court judges. This bill inter-alia provided that if the allegations are proven, the NJC may impose minor measures or recommend the removal of the judge, while the removal of a judge would be through impeachment by Parliament. However, the Bill could not see the light of the day since it was allowed to lapse.
Nevertheless, the UPA government in its second term persisted with its attempt to bring in more judicial accountability and introduced The Judicial Standards And Accountability Bill, 2010 in the Lok Sabha on December 1, 2010. This was done with an objective to lay down judicial standards and provide for accountability of judges, and establish credible and expedient mechanism for investigating individual complaints for misbehaviour or incapacity of a judge of the Supreme Court or of a High Court. In addition, it was also an attempt to regulate the procedure for such investigations, and for the presentation of an address by Parliament to the President in relation to proceeding for removal of a judge and for matters connected therewith or incidental thereto.
Key features of this significant Bill were that it provided for judges to declare their assets, laid down judicial standards, and established processes for removal of judges of the Supreme Court and High Courts. The Bill further provided for establishing the National Judicial Oversight Committee, the Complaints Scrutiny Panel and an investigation committee. Any person could make a complaint against a judge to the Oversight Committee on grounds of 'misbehavior'. A motion for removal of a judge on grounds of misbehavior could also be moved in Parliament, as per the Bill. Such a motion would have been referred for further inquiry to the Oversight Committee. Complaints and inquiries against judges were supposed to be confidential, and 'frivolous complaints' were liable to be penalised.
Pertinently, the Bill gave the power to the Oversight Committee to issue advisories or warnings to judges, and also recommend their removal to the President.
The then Union Law Minister, Salman Khursheed, said while presenting the Bill in Lok Sabha:
"The Judicial Standards & Accountability Bill is an important step which is being taken by the Government for achieving higher standards of probity and for giving statutory backing to the universally accepted values of judicial life. The passage of this Bill shall be a major achievement in establishing systems and procedures which will be far superior and practicable to that provided for in the Judges Enquiry Act. I am certain that public confidence in integrity and impartiality of the higher judiciary will go higher with this Bill as it will enhance the quality by ensuring impeccable conduct in dealings with matters which are not only of public importance but also those having to do with the individuals."
Even though the Bill could not see the light of the day as it was allowed to lapse, what we at least witnessed in the previous UPA era, that both the government and the Legislature were at least pursuing and exploring mechanisms to address the gravity of the issue that is corruption within judiciary. The fact that Bills with clear eye on judicial reform were being tabled in Parliament was a sign that there was no dearth of intent to make the judiciary more accountable and transparent.
The present government brought the National Judicial Appointments Commission Act (NJAC), 2014 establishing National Judicial Appointments Commission, a body consisting of six people — the Chief Justice of India, the two most senior judges of the Supreme Court, the Law Minister, and two 'eminent persons'. These eminent persons were to be nominated for a three-year term by a committee consisting of the Chief Justice, the Prime Minister, and the Leader of the Opposition in the Lok Sabha, and were not eligible for re-nomination. Function of this commission was to recommend persons for appointment as the Chief Justice of India and other Judges of the Supreme Court and Chief Justices and other Judges of High Courts and for their transfers.
However, this Act could not withstand on judicial scrutiny and was struck down by a five-judge Constitution bench by the majority of 4:1, as violative of the basic structure of the Constitution that mandates, among other features, the independence of the judiciary. It may also be noted that the NJAC Act did not provide for the mechanism to deal with the complaints against judges unlike the previous Judicial Standards And Accountability Bill, 2010, while also lending itself towards undue interference from the executive.
Now it appears that the present NDA government has dumped even the very idea of judicial reform, and in fact is taking an aggressive stance to defend the many signs of rot within the hallowed and democratically indispensable institution. By sitting over the recommendations of collegiums, the present government is doing what it could not do through NJAC Act. It is arm-twisting the judiciary and making it dysfunctional. In such a scenario how to expect any sincere attempts at judicial reform from the government?
For instance, it is intriguing that two Union ministers – Arun Jaitely and Sushma Swaraj – who were signatories to the removal motion of Justice Sen, are today maintaining a deafening silence on the letter of the present CJI seeking removal of Justice Shukla. It is rather astonishing that neither the government, nor any political party is daring to speak on the issue which undoubtedly pertains to the corruption in the higher judiciary.
In fact, Arun Jaitely when he was the Leader of Opposition in Rajya Sabha, favoured creating a Commission and considered converting it into both an appointment and integrity institution in relation to the judges. He called it Judicial Lokpal. He even took jibes at judges appointing judges, and other than in impeachment cases, judges alone deciding upon the misdemeanour of a delinquent judge. Yet, in clear contradiction to his earlier stance when he was an Opposition leader, Jaitley has neither spoken in favour of initiating a move to enact a judicial accountability law, nor has his government moved to remove the individual judge who has been actually indicted by the in-house inquiry panel of the Supreme Court.
Let it be clear that the onus to act on the letter of CJI requesting initiating the removal of Justice Shukla rests more on the shoulders of the ruling party, and more so since it came to power claiming that it would root out corruption in all its forms. Prime Minister Narendra Modi, too, unlike his predecessor Dr Manmohan Singh, has turned a blind eye to the issue, and till date not bothered to circulate the letter of the CJI among the political parties so as to apprise them of the misconduct of Justice Shukla.
It is noteworthy that Justice Shukla has been indicted by none other than the in-house panel constituted by the CJI comprising three sitting judges. Government's act of sitting over the letter of the CJI is indeed disturbing, though not unexpected. It is the same government that has been sitting over the recommendations of the Collegium for long and as rightly pointed out by Justice Chalemswar in his letter of March 21, 2018 that for quite some time now, their unhappy experience has been that acceptance of their recommendations by the Government is an exception and sitting on them is the norm. In the process, it appears, "inconvenient" but able judges are being bypassed.
As explained above, the entire process of the removal of a judge is complex, politicized and thus so far no judge has been impeached. Moreover, there is no provision in law to place the judge of a High Court and that of the Supreme Court under suspension pending inquiry. There is, however, a provision in the in-house Supreme Court resolution of 1997 to advise concerned Chief Justice to withdraw judicial work from the accused judge, which too has been exhausted. However, the legal sanctity of this resolution has perhaps not been put to test till date. It is neither traceable in the Constitution, nor in any statute. . The fact remains that judicial work has been withdrawn from Justice Shukla and he has not been assigned any fresh judicial work, thereby setting a precedent for non-assignment of judicial work pending an inquiry against a sitting judge.
The matter is serious. It is serious because recently four senior most judges of the Supreme Court in an unprecedented and historical press conference accused the Chief Justices of India for assigning the cases having far reaching consequences for the Nation and the institution to the benches "of their preference" without any rationale basis for such assignment. There are dim chances of a fair inquiry against a sitting judge. One cannot altogether rule out the probability of inquiry being influenced in some way. Further, to pay a judge full salary with all allowances with no work having been done by him is nothing but a sort of fraud on the public exchequer. It is also makes a mockery of innumerable pronouncements by the apex court where government servants have been denied salary for periods when they did not perform any work!
It is apposite to note here that Justice Chelameswar and Justice Gogoi in their concurring judgement in Justice C. S. Karnan's case have also echoed the need to set up appropriate legal regime to deal with situations where the conduct of a Judge of a constitutional court requires corrective measures – other than impeachment – to be taken.
It is in this backdrop that there is a need to put in place a fair and transparent mechanism to deal with complaints against judges, and if need be, to provide for their suspension pending inquiry. Otherwise, this would amount to accepting corruption in higher judiciary as the new normal. InHigh Court of Judicature at Bombay vs. Shashikant S. Patil, (2000) 1 SCC 416, it was stated that dishonesty is the stark antithesis of judicial probity, and "… [A] dishonest judicial personage is an oxymoron…"
As the mystery continues on the question why the motion to impeach Justice Shukla is not being presented to the Speaker of the Lok Sabha or the chairperson of Rajya Sabha, who happens to be the vice-president of India, all we can do is guess at the reasons. The answer, as they say, is blowing in the wind.
Paras Nath Singh is a Delhi-based lawyer and is a part of the Invisible Lawyer team.