[dropcap]I[/dropcap]f there is a public office that enjoys unfettered immunity from any sort of transparency and accountability, it is the office of the judges of the High Courts and the Supreme Court of India. Neither the Constitution of India, nor any statute provides functioning mechanisms for the accountability of judges, except that the Constitution of India provides for a political process to remove a judge from his office on the ground of “proved misbehaviour” and incapacity. The Right to Information Act, 2005 equally applies to the judiciary. However, ever since the RTI Act has come into existence, the attitude of the higher judiciary in particular the Supreme Court has been one of acute discomfort. RTI Act has been diluted by the Court through judicial interpretations. The stay order granted by the Supreme Court way back in 2009, against Delhi High Court judgment holding office of the Chief Justice of India subject to the RTI Act, is still in operation.
Figure 1: RTI application
Figure 2: RTI response
Today, one cannot access information related to appointment of judges and complaints against them under the RTI Act, or otherwise Today, one cannot access information related to appointment of judges and complaints against them under the RTI Act, or otherwise. In response to an RTI application (see figure 1 above) seeking among other things, information related to the total number of in-house inquiries instituted against High Court judges since 2010, as well as the names of those High Court judges against whom in-house inquiries are pending, the Central Public Information Officer (CPIO) cum Additional Registrar of the Supreme Court replied (see figure 2 above) that the information sought could not be provided since there is a stay of the disclosure of information relating to matter like the present one. The officer further stated that information sought was “confidential” and therefore citizens have no right to access such information under the RTI Act.
The point is that one cannot even access statistics and names of judges against whom an in-house inquiry has been instituted. Secrecy surrounds the institution of judiciary. On the other hand, the same very judiciary ordered filing of affidavits by candidates contesting elections stating criminal cases pending against them. Does that mean the onus of being accountable and transparent falls on every other institution except the judiciary?
Collegium of opacity?
The Collegium system for recommending to the government the names for the appointment of judges to the High Court, the Supreme Court and also for the transfer of judges, brought into existence by the Supreme Court in 1993. Only in October 2017, Supreme Court Collegium decided to publish suo moto the resolutions of its meetings on its website. Hence, it took almost 24 years for the Collegium to start disclosing its resolutions/recommendations. The credit, if any, for ‘small mercies’ from the Court for considering citizens worthy of accessing the resolutions of Collegium, goes to Justice Jasti Chelameswar, who despite being the part of the Collegium, minced no words in criticising it for its opaqueness. At times, he even boycotted the meetings of Collegium demanding transparency within the body taking calls on the appointment of judges.
An informed citizenry is necessary for a participatory democracy. Mere publication of Collegium resolutions without making material forming the basis for the resolution/recommendation public is not sufficient to keep us informed of who is being appointed and why or why not). Reluctance of the five-judge bench to part with administrative order passed by the CJI constituting it — in order to hear a petition challenging the decision of the Vice President of India refusing to admit the impeachment motion against the Chief Justice — is troubling. Clearly, it shows that judiciary is still not willing to open its house for public gaze. Advocate Prashant Bhushan has filed an RTI application seeking copy of the same administrative order constituting the five-judge bench. Though the reply is awaited, in all probability, the information sought would be withheld by the Central Public Information Officer (CPIO) of the Supreme Court of India.
Amidst this secrecy, the press conference by four senior-most judges of the country exposing the rot within the judiciary can only be considered as an exception to the rule of continuing opacity.
Article 124(4) and (5), read with Article 218 of the Constitution confer on parliamentarians the authority to initiate removal proceedings against a judge of the Supreme Court of India and that of the High Court. Once a notice seeking removal of a judge is admitted by the Speaker or the Chairperson, as the case may be, the Judges (Inquiry) Act, 1968 kicks in. The Act regulates the procedure to make presentation of an address and for the investigation and proof of the alleged misbehaviour or incapacity of a Judge.
This process involves Members of Parliament and thus has a potential to politicise the question of impeachment, rather than deal with the issue of corruption and improprieties in the judiciary. Throwing the gravity of charges levelled against a judge into dustbin, parliamentarians belonging to different political parties stand divided on the question of removal of the judge. No impeachment motion in post-independent India has ever succeeded in removing a judge of the High Court or that of Supreme Court.
Past attempts at removal of judges
Justice V Ramaswami, elevated to the Supreme Court in 1989, was the first judge post 1947 who was sought to be removed from office. He was accused of making lavish expenditure out of public funds for his official residence in Chandigarh when he was the Chief Justice of the Punjab and Haryana High Court. Inquiry committee constituted under the Judicial (Inquiry) Act, 1968 found him guilty of all charges. However, the motion for his removal fell flat in Lok Sabha because Congress party abstained from voting in favour of Justice Ramaswami.
The second judge who faced removal proceedings was Justice Soumitra Sen of the Calcutta High Court. He was accused of misappropriation of Rs 32 lakh in his capacity as a lawyer when he was appointed as receiver in 1993 by the Court. 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. Acting upon the letter of then CJI, on February 20, 2009, Members of Parliament across political parties submitted in the upper house the motion seeking removal of Justice Sen. The then chairperson of the Rajya Sabha admitted the motion and constituted a three-member inquiry committee — consisting of Justice B Sudershan Reddy, a judge of the Supreme Court of India, Justice Mukul Mudgal, Chief Justice of the High Court of Punjab and Haryana at Chandigarh, and Fali S Nariman, a distinguished jurist, in terms of Judges Inquiry Act, 1968 — to inquire into the allegations against Justice Sen. The committee report tabled in the Parliament on November 10, 2010, found him guilty of misbehavior. The resultant motion seeking his removal was taken up for discussion in the Rajya Sabha on August 18, 2011 and the same went through in the upper house.
As per the Lok Sabha bulletin of that time, motion was scheduled to be discussed in the lower house on September 5 and 6, 2011. However, Justice Sen tendered his resignation on September 1. Consequently, the motion became infructuous.
In the meantime, Justice P D Dinakaran from the Karnataka High Court landed in controversy, in fact at a time when Supreme Court Collegium recommended his name for the elevation to the apex court. This recommendation did not go down well with eminent jurists who objected to his elevation to the Supreme Court on the ground of his alleged involvement in corruption and land grabbing. The then government thought it appropriate to seek reconsideration of the recommendation made by the Collegium. Accordingly, the recommendation was returned to the Collegium. He was also asked to proceed on leave, but he refused to do so. Following this, Collegium recommended to the government to transfer him to the Sikkim High Court.
The then Rajya Sabha Chairman Hamid Ansari admitted a motion for the removal of Justice Dinakaran following a petition by 76 MPs. He constituted a panel in January 2010 — consisting of Justice Aftab Alam of the Supreme Court, Karnataka High Court Chief Justice J S Khehar and senior advocate P P Rao — to examine the allegations. Committee constituted under Judges (Inquiry) Act, 1968 was wound up due to resignation of Justice Dinakaran. Consequently, motion seeking his removal also became infructuous.
Attempts were made twice in December 2016 and again in May 2017 for initiating impeachment proceedings against Justice C V Nagarjuna Reddy of the High Court for Andhra Pradesh and Telangana. Allegations against the judge include interfering in the judicial process in several cases; and caste slurs, including death threats against Dalit Junior Civil Judge Sanku Rama Krishna at the courts in Rayachoti, a town in Andhra Pradesh’s Kadapa district. In the first attempt, total 61 MPs from Rajya Sabha submitted the notice seeking his removal on December 5, 2016, but it was failed after 19 signatories withdrew. In the second attempts 9 out of 54 members of the Rajya Sabha, who had proposed the initiation of proceedings against him, withdrew their signatures.
Case of Justice S K Gangele, a sitting judge of Madhya Pradesh High Court, is even more curious. The three-member inquiry committee constituted by Rajya Sabha Chairperson in terms of Judges (Inquiry) Act, 1968 exonerated him of charges of sexual harassment of a subordinate woman judicial officer. Interestingly, the committee in its report conceded that the transfer of victim was unjust and punitive in nature. However, there is no accountability fixed for such a wrong doing and the judge is still in office undeterred. The committee held that this amounted to an impropriety not “misbehaviour “
The recent attempt at impeaching the incumbent Chief Justice of India, Dipak Misra, deeply divided ruling and opposition parties as well as members of the Bar. Spokespersons of ruling parties were defending the CJI on news channels which reflected poorly on the CJI and ruling party. Others, rather than focusing on the allegations of corruption, claimed that the impeachment motion against CJI was a political distraction from the hearing of Ayodhya case. On the other side, the Vice President cum Chairperson Rajya Sabha, went out of the way and refused to admit the motion seeking removal of the CJI. He assumed the role of inquiry officer and adjudicator to himself.
The case of Justice Narayan Shukla of Allahabad High Court is more troubling and worrisome. He has been 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.
Following the report of in-house committee, the CJI, 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 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. However, there is no whisper in the corridors on his removal. It is intriguing that ruling government is patronising such a tainted judge and has not shared letter of the CJI with the political parties so that they could take a call in the matter.
In the face of all these developments, both from the past as well as from recent episodes, it would not be wrong to say that impeachment procedure has almost become obsolete.
In-house procedure lacks legal sanctity
The Supreme Court of India in its full court meeting held on December 5, 1999 considered the report of the Committee on “In-House Procedure” for taking remedial action against judges who, by their acts or omission or commission, do not follow universally accepted values of judicial life, including those mentioned in the Restatement of Values of Judicial Life. The Full Court unanimously adopted the said report of the committee.
This committee provided that in case allegations are against a judge of a High Court, there ought to be a constitution of in-house inquiry panel by the CJI, consisting of two chief justices of High Courts other than the High Court to which judge in question belongs, and one High Court judge. In case of allegations which require deeper probe against the Chief Justice of a High Court, the committee shall consist of a Supreme Court judge and two Chief Justices of High Courts. If the committee finds substance in the allegations contained in the complaint and misconduct disclosed in the allegations is such that it warrants for initiation of removal of a judge, the CJI shall advise the concerned judge to resign, or seek voluntary retirement.
In case the judge refuses to resign, the concerned Chief Justice of High Court would be advised by the CJI not to allocate judicial work to the judge concerned. In addition, the President of India and the Prime Minister shall be intimated of the development since allegations against the judge had been found by the committee to be so serious as to warrant the initiation of proceedings for removal, and the copy of the committee report may be sent with. Further, if the committee finds that there is substance in the allegations, but the misconduct disclosed is not such serious to call for removal of a judge, the CJI shall call the concerned judge and advise him accordingly and also direct the report of the committee be placed on the record.
In so far as allegations against the judge of the Supreme Court is concerned, in-house committee constituted by CJI shall comprise of three Supreme Court judges. In all cases, the nature of the inquiry by in-house committee shall be of fact-finding. It may be noted that in-house procedure is silent when it comes to any complaint against the Chief Justice of India himself. Be that as it may, this in-house procedure has no backing of any statute, nor it is traceable to the Constitution. Moreover, it is not a declared law in terms of Article 141 of the Consitution. Therefore, its legal validity is doubtful and the same is evident from the inaction of the government of India on the letter of CJI seeking removal proceedings against Justice Narayan Shukla.
Immunity from criminal prosecution
A five-judge Constitution Bench of the Supreme Court in the K Veeraswami case made it mandatory to consult with the Chief Justice of India to register a First Information Report (FIR) under section 154 of the Criminal Procedure Code (CrPC) against a sitting judge of the High Court and Supreme Court. If the Chief Justice is of opinion that it is not a fit case for proceeding under the Act, the case shall not be registered.
In case allegations of criminal misconduct are against the Chief Justice of India himself then the government may consult any judge or judges of the Supreme Court. Similar consultation is required at the stage of examining the question of granting sanction for prosecution and it shall be necessary and appropriate that the question of sanction be guided by and in accordance with the advice of the Chief Justice of India.
The intention of introducing these safeguards was to ensure that no honest and fearless judge was harassed by the executive. However, experience tells us that this judgment has become a kind of weapon to shield tainted judges. Pertinently, if a statement issued by the Campaign for Judicial Accountability & Judicial Reforms (CJAR) is to be believed, then the present CJI denied permission to the CBI to register an FIR against Justice Narayan Shukla of the Allahabad High Court that has stalled further investigation in this matter by the CBI. The question is why the CJI denied permission to CBI when he himself recommended removal of Justice Shukla? The silence of government on the removal of Justice Shukla also indicates there’s more than what meets the eye.
Need for alternative mechanism
There are quite a few instances as narrated above to show that impeachment is ineffective to deal with complaints against judges. Also, impeachment cannot be a solution to every evil within the judiciary. Not every misconduct warrants the removal of a judge. Justice Chelameswar and Justice Gogoi in their concurring judgement in Justice 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. In my earlier article, I highlighted the attempts made by the then UPA government to push in the Judicial Standards and Accountability Bill, 2010, which sought to put in place a system to probe complaints against judges of the Supreme Court and the high courts. However, it could not see light of the day and lapsed on the dissolution of 15th Lok Sabha in May 2014. At present, there is a total silence on the part of the Government on bringing in reforms in the judiciary.
Instead, it is high time to bring in an effective, practical and comprehensive mechanism to deal with the complaints against judges that at the same time can ensure no honest judge is harassed and victimised.