Post suo motu cognisance, what action can the SC take against Karnataka judge who made Pakistan and underwear comments?

Justice V. Srishananda of the Karnataka High Court may be in the eye of a social media storm right now for his inappropriate oral remarks in court, but will the incident be just another reminder that the Constitution grants constitutional court judges immense powers to weather all storms? 

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WHEN a justice takes a turn towards bigotry and misogyny, should his actions be just done or seen to be done? In other words, are such actions wrong or their publicity wrongful?

This question lies at the heart of the events unfolding simultaneously at the Karnataka High Court and the Supreme Court of India.

On Friday, a Bench comprising the Chief Justice of India (CJI) Dr D.Y. Chandrachud and the four senior-most judges of the Supreme Court took suo motu cognisance of certain gratuitous observations made by Justice Vedavyasachar Srishananda of the Karnataka High Court during court proceedings.

The Bench has also asked the registrar general of the Karnataka High Court to submit a report after seeking administrative directions from the Chief Justice of the high court about the utterances made by Justice Srishananda.

In addition, the Bench has indicated to the Attorney General for India that it may lay down some basic guidelines on the conduct of judges.

"In this age of social media, we are closely watched, and we have to act accordingly," CJI Dr Chandrachud said.

The Bench will now hear the matter on September 25.

Justice Srishananda was appointed to the Karnataka High Court on May 4, 2020. He was confirmed to his position on September 23, 2021. He is due to retire on March 28, 2028. He hails from the district judiciary.

Pakistan and underwear

The social media has been buzzing since yesterday when a video surfaced in which Justice Srishananda, while addressing a landlord–tenant dispute, referred to a Muslim-majority area in Bengaluru as "Pakistan".

If that was not enough, yet another video surfaced of the same judge making a misogynistic comment involving a woman lawyer.

In the video, in a case concerning a bounced cheque, Justice Srishananda can be seen asking a male advocate if his client was an income tax assessee.

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The female lawyer appearing for the other side interjects, replying in the affirmative to the judge's question, for the reason that the client had filed returns.

Justice Srishananda can then be seen retorting that the lady lawyer seems to know everything about the other side.

Then, without hesitating, he can be seen adding, "Tomorrow you may also say what undergarments he is wearing."

Senior advocate Indira Jaising took to X (formerly Twitter) to condemn the remarks made by Justice Srishananda. She requested the CJI to take suo motu cognisance of the remarks made by Justice Srishananda and also ensure that he is sent for gender sensitisation training.

Is the real impropriety truth-telling? 

After the remarks made by Justice Srishananda took social media by storm, the Karnataka High Court put a disclaimer on its YouTube channel publicising the Karnataka Rules on Live Streaming and Recording of Court Proceedings, 2021 which, among other things, mandate that live stream of proceedings shall not be reproduced, transmitted, uploaded, posted, modified, published or re-published in any form without the prior written authorisation of the court.

The Advocates' Association, Bengaluru, in a letter to the Chief Justice of the Karnataka High Court, has requested to stop the live streaming of the court proceedings.

It says if the live streaming is not stopped then the situation was likely to be aggravated and the image of courts in public would be tarnished. The association has also given an upvote to Justice Srishananda, saying he is good in his judgments and is known for his integrity.

"Members also feel that all the good work of the learned judge is taken away with such side statements and jibes which are wholly irrelevant to the occasion," the association stated.

What are the options available before the Supreme Court?

High court judges are constitutional functionaries. The Supreme Court does not exercise any disciplinary jurisdiction over high court judges. Therefore, it is unclear to what extent the Supreme Court can hold Justice Srishananda accountable for his utterances.

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Importantly, the oral utterances made by Justice Srishananda have not found their way into a judicial Order, which the Supreme Court could set aside. The Supreme Court may be hard-pressed to find a judicial remedy against oral remarks in the nature of a communal slur and an inappropriate remark against a female lawyer.

Therefore, although the Supreme Court has taken cognisance of the matter on the judicial side, it obviously cannot go beyond what the Constitution provides for the removal of a high court judge. A high court judge, like a Supreme Court judge, holds office by virtue of a warrant of appointment signed by the President of India.

The only procedures provided for taking action against a high court judge are contemplated in the in-house procedure adopted by the Supreme Court on the administrative side or the process of removal of a judge as mentioned in the Constitution and the Judges (Inquiry) Act, 1968.

On the judicial side, the Supreme Court can at most censure the judge. It can also lay down guidelines to be adhered to by judges "in the era of social media", as the CJI observed during the hearing. But such guidelines do not have a retrospective effect and thus will not apply to past utterances of Justice Srishananda.

As far as the removal or suspension of judges is concerned, it cannot be done by a judicial Order. Suspension of a high court judge is not contemplated anywhere in the Indian Constitution.

However, the Supreme Court may request the Chief Justice of the Karnataka High Court not assign cases involving women's rights and dignity to Justice Srishananda.

In-house procedure

On the administrative side, under the in-house inquiry procedure of 1999, the CJI can call for a comment from the Chief Justice of the high court who will in turn seek a comment from the judge involved.

If on consideration of the allegations, the Chief Justice of the high court is satisfied that no further action is necessary or he thinks that the allegations contained in the complaint need a deeper probe, he shall return the complaint to the CJI along with a statement on the response of the judge concerned and his comments.

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If the CJI, after having the benefit of the responses of the judge concerned and the comments of the Chief Justice of the high court, believes that a deeper probe is required into the allegations, he can form a three-member committee consisting of two chief justices of high courts other than the high court to which the judge belongs and one high court judge. Such an inquiry is like a fact-finding inquiry.

Upon the conclusion of the inquiry, the committee may report to the CJI that:

1. There is no substance in the allegations contained in the complaint
2. There is sufficient substance in the allegations contained in the complaint and the misconduct disclosed is so serious that it calls for the initiation of proceedings for the removal of the judge.
3. There is substance in the allegations contained in the complaint but the misconduct disclosed is not of such a serious nature as to call for initiation or proceedings for the removal of the judge.

In case the committee finds that there is no substance to the allegations, the CJI can close the complaint. However, if the committee finds that there is substance in the allegations contained in the complaint and the misconduct disclosed in the allegations is such that it calls for the initiation of proceedings for the removal of the judge, the CJI has the power to carry out the following actions:

• The judge concerned can be advised to resign from his office or seek voluntary retirement.
• In case the judge expresses unwillingness to resign or seeks voluntary retirement, the Chief Justice of the concerned high court can be advised by the CJI not to allocate any judicial work to the judge concerned. The President of India and Prime Minister shall be intimated that this has been done because allegations against the judge were found by the committee to be so serious as to warrant the initiation of proceedings for removal and the copy of the report of the committee may be enclosed.
• If the committee finds that there is substance in the allegations but the misconduct disclosed is not so serious as to call for the initiation of proceedings for the removal of the judge, the CJl is required to call the judge concerned and advise him accordingly. The CJI may also direct that the report of the committee be placed on record.

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Importantly, in this case, the five judges have taken suo motu cognisance of the utterance of a high court judge. It can thus be said that prima facie the Supreme Court itself has found the utterances improper and unbecoming of a high court judge.

The only issue which needs to be addressed is whether the utterances of Justice Srishananda amount to misbehaviour and if they do, whether such conduct warrants his removal.

Process of removal under the Constitution

Article 124(4) and (5) read with Article 218 of the Constitution confers the authority on parliamentarians to initiate removal proceedings against a Supreme Court or high court judge on the ground of 'proven misbehaviour or incapacity'.

The Judges (Inquiry) Act, 1968 regulates the procedure for the investigation and proof of the misbehaviour or incapacity of a judge of the Supreme Court or a high court and for the presentation of an address by the Parliament to the President. Interestingly, neither the Constitution not the 1968 Act define 'misbehaviour' in this context.

Justice K. Ramaswamy, in his opinion in Krishna Swami versus Union of India, observed that wilful abuse of judicial office, wilful misconduct in the office, corruption, lack of integrity, or any other offence involving moral turpitude would be misbehaviour.

Misbehaviour would extend to the conduct of a judge in or beyond the execution of judicial office. Justice Ramaswamy also observed that Supreme Court and high court judges should be "above the conduct of ordinary mortals".

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Under the 1968 Act, a motion to remove a high court or Supreme Court judge can be submitted in either House of the Parliament. If it has to originate in the Lok Sabha, the motion must be signed by at least 100 members of Parliament (MPs).

If, however, the motion has to originate in the Rajya Sabha, at least 50 members of the House must sign it. It is the sole prerogative of the Speaker or the chairperson, as the case may be, to either admit the motion or reject it.

In post-Independence India, there has never been a successful impeachment of a Supreme Court or high court judge. In a few cases, the motion to remove a judge reached the Parliament but failed even after the committee to probe the allegations had found the judge guilty of the proven misbehaviour.

Justice V. Ramaswami of the Supreme Court was the first judge sought to be removed in post-Independence India. He was accused of misusing public funds to build a lavish official residence at Chandigarh when he had been the Chief Justice of the Punjab and Haryana High Court.

The Judges Inquiry Committee found him guilty of all charges. However, the motion for his removal fell flat in Lok Sabha because MPs of Congress (I) party abstained from voting on the motion.

In another case, Justice Soumitra Sen of the Calcutta High Court was accused of misappropriation of ₹32 lakh in his capacity as a lawyer when he had been appointed as receiver in 1993 by the court.

The Judges Inquiry Committee found him guilty of misbehaviour. The Lok Sabha passed a motion to remove him but he resigned a day before the motion could be taken up in the Rajya Sabha. Consequently, the motion became infructuous.

In yet another instance, Justice P.D. Dinakaran, who was the Chief Justice of the Karnataka High Court, resigned before proceedings could be initiated against him. There were allegations of corruption and judicial misconduct against him.

Interestingly, the Supreme Court Collegium had halted Justice Dinakaran's elevation to the Supreme Court once the allegations of corruption surfaced. Subsequently, he refused to go on leave when asked by the then-CJI K.G. Balakrishnan and was later transferred to the Sikkim High Court.

At that time, the Sikkim Bar Association had protested against his transfer to the state, asking, "How can a person be fit to discharge judicial duties in one state if he has not been found worthy of doing the same in another state?"

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In 2017, Justice C.V. Nagarjuna Reddy of the High Court for Andhra Pradesh and Telangana was sought to be removed. The allegations against the judge included making casteist slurs, including death threats against a Dalit junior civil judge.

In the first attempt, a total of 61 MPs from the Rajya Sabha submitted the notice seeking his removal on December 5, 2016, but the motion failed after 19 signatories withdrew.

In the second attempt, nine out of 54 members of the Rajya Sabha who had proposed the initiation of proceedings against him withdrew their signatures. Thus, even a committee to examine the allegations against him could not be formed.

In the case of Justice S.K. Gangele, a sitting judge of Madhya Pradesh High Court, the three-member inquiry committee constituted by Rajya Sabha Chairperson in terms of the 1968 Act exonerated him of charges of sexual harassment of a subordinate woman judicial officer.

Interestingly, the committee in its report conceded that the transfer of the victim was unjust and punitive in nature. However, no accountability was fixed for such wrongdoing and the judge continued to be in office undeterred. The committee held that his behaviour amounted to impropriety not 'misbehaviour'. Later, the Supreme Court reinstated the woman judge who had been forced to resign.

The then Rajya Sabha chairperson M. Venkaiah Naidu rejected the motion to initiate removal proceedings against the then Chief Justice of India, Dipak Misra.

These instances show that the process of removing a constitutional court judge is not only political but also rigorous and cumbersome.

Justice Chelameswar and Justice Gogoi, in their concurring judgment in Justice Karnan's case, underscored that there could be deviations in the conduct of the holders of the offices of constitutional courts that do not strictly call for impeachment of the individual or that such impeachment is not feasible.

The utterances made by Justice Srishananda may not warrant his removal, but the utterances made by him, which paint a communal and misogynistic picture cannot be taken lightly. The utterances made by Justice Srishananda are certainly inconsistent with the nature of the office and standards of conduct expected of a judge of a constitutional court.

In the Karnan's case, Justice Chelameswar and Justice Gogoi flagged the lack of a legal mechanism other than impeachment to deal with the deviations in the conduct of those holding the office of a judge of the high court.

It is worth recalling that the United Progressive Alliance (UPA)-I government had introduced Judges (Inquiry) Bill, 2006 in the Lok Sabha to replace the existing Judges Inquiry Act, 1968. The 2006 Bill provided for establishing the National Judicial Council to conduct inquiries into allegations of incapacity or misbehavior by high court and Supreme Court judges. This Bill also provided that if the allegations are proven, the NJC may impose minor measures or recommend the removal of the judge. The removal of a judge would be through impeachment by the Parliament. However, the Bill could not see the light of the day since it was allowed to lapse.

In its second tenure, the UPA government introduced the Judicial Standards and Accountability Bill, 2010 in the Lok Sabha on December 1, 2010. Key features of this significant Bill were that it provided for judges to declare their assets, laid down judicial standards, and established processes for the 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. The Bill gave the power to issue advisories or warnings to judges and also recommend their removal to the President to the Oversight Committee. This Bill was also allowed to lapse.

The case of Justice Srishananda has once again brought the debate concerning accountability of judges to the fore. It is an occasion to debate this issue and explore what mechanism can be put in place to fix errant judges' for conduct inconsistent with the nature of the office. How to achieve this without tampering with the independence of the judiciary, vital for the existence of the republic, is the proverbial Gordian knot.