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Securing The Sentinel

Kartikeya Sharma
16 July 2020 8:53 AM GMT
Securing The Sentinel
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Over the last few years, the higher judiciary in India has weathered a number of storms in the shape of scandals that rocked the very independence and credibility of the institution. In 2017, the bitter battle between Justice C.S. Karnan of the Calcutta High Court and his brethren in the higher judiciary came to an unsatisfying conclusion with Justice Karnan being imprisoned for a period of six months on being found guilty of contempt by the Supreme Court of India("Supreme Court"). The concurring opinion in the case, delivered by Justice Chelameswar was of the view that there was a need to set up an appropriate legal regime to deal with situations where the conduct of a judge of the higher judiciary requires corrective measures, other than impeachment, to be taken.

Soon after, there was trouble brewing at the Lucknow Bench of the Allahabad High Court involving Justice SN Shukla. In September, 2017, a complaint was filed with the Chief Justice of the Allahabad High Court, Justice D.B. Bhosale alleging malpractices by Justice Shukla to the extent that handwritten changes were made in his own bench's order, thereby defying a Supreme Court order that had come a few days earlier. In pursuance of the complaint filed against Justice Shukla, the then Chief Justice of India("CJI") set up a 3-judge committee to look into the allegations. The committee vide its report ("2018 Report"), concluded that there was substantial evidence against Shukla to prove the allegations of corruption complaint against him. Thereafter, Chief Justice Dipak Misra wrote to Justice Shukla stating that the former was accepting the 2018 Report of the committee headed by Justice Indira Banerjee( then Chief Justice of the Madras High Court) and that a request was going to made to the President of India("President") to initiate impeachment proceedings against Justice Shukla. Two options were put forth before Justice Shukla, either to resign from office or seek voluntary retirement both of which were rejected by Justice Shukla. The CJI was constrained to ask the Allahabad High Court Chief Justice to withdraw judicial work from Justice Shukla and the same was done immediately. This was in January 2018. Thereafter arose the peculiar situation, insofar as Justice Shukla is concerned, he still holds the office of judge of the Allahabad High Court but has not exercised any of his judicial functions since January 2018. Interestingly, Justice Shukla is the first sitting judge of a High Court to be investigated by the Central Bureau of Investigation ("CBI") in connection with the allegations made by the 2018 Report. So, on one hand, Justice Shukla faces an impending CBI investigation coupled with a possible impeachment motion in Parliament and on the other hand, he holds the august office of a High Court judge, all in all a highly irregular and unprecedented situation.

But, as things stand, Justice Shukla is set to retire as a High Court judge this month without being impeached or even conclusively investigated. This brings the discussion back to the original question posed by Justice Chelameswar in his 2017 judgement, that is, the legal regime that needs to be in place to deal with the omnipresent problem of errant judges of the higher judiciary. Impeachment of judges has proven to be an arduous process that has, in India's history, resulted in the resignation or even retirement of judges before the conclusion of the process or at other stages of the proceedings. The provisions relating to impeachment provide for a detailed procedure to be followed which is a clear signal that it is not to be used whimsically. Between letting acts of misdemeanor slide and impeachment hanging over the judges' heads like the sword of Damocles, there must necessarily be a middle ground to uphold the majesty of our courts.

The law as it stands

Briefly described, the law on removal of judges of the higher judiciary may be divided into two categories- as per the Supreme Court's in-house procedure that was approved by the Full Court in 1999 and the procedure laid down in the Judges Inquiry Act, 1968("JIA, 1968") made in furtherance of Article 124(5) to supplement Article 124(4). The former is an internal disciplinary mechanism which involves a complaint to the CJI or the President. The CJI conducts a preliminary inquiry and if, in his view, the situation warrants action, a committee of 3 judges will be set up to conduct a thorough inquiry. The committee may come to one of three conclusions, (1) that no action may be taken against the accused judge, (2) that there is substance in the allegations but the misconduct is not of such serious nature as to warrant removal, or (3) that the allegations appear to be true and removal of the accused judge may be called for. It is clear from the possible outcomes that the committee may arrive at, that the focus of this procedure is on whether the accused judge must be removed or not. It does not seek to deal with issues that do not warrant removal. In case the committee opines that the allegations are of a serious nature and that removal would be the appropriate recourse, the CJI shall ask the judge to resign or voluntarily retire. If he does not choose either option, the errant judge may have his judicial work withdrawn and the CJI shall inform the President and the Prime Minister of the action taken in this regard along with a copy of the inquiry report prepared by the committee inviting them to initiate the process of impeachment. In the case of Justice SN Shukla, this is exactly what has happened, to the extent that his judicial work was withdrawn two and half years ago and two successive CJIs have requested the government to initiate impeachment proceedings against Justice SN Shukla but, no step has been taken in furtherance of that.

Contrasting the in-house procedure with that found under the JIA, 1968, it is seen that the procedure in the latter is initiated at the behest of a certain number of members of the House( 100 in case of Lok Sabha and 50 in case of Rajya Sabha). Thereafter, the signed notice is sent to the Presiding Officer of the relevant House and a 3 member committee shall be set up to investigate the allegations. In case the report of the committee records a finding of guilt, it shall be placed before the relevant House wherein the motion for removal of the judge will be discussed and debated. The motion is required to be adopted by each House by a majority of the total membership of that House and a majority of at least two-thirds of the members of that House present and voting. Once the motion is approved in both Houses, it is sent to the President, who will issue an order for removal of the judge.

The in house procedure seeks to preserve the sanctity of the judiciary by allowing for an internal procedure to deal with complaints that may be of a frivolous nature but, at the same time provides for an invitation to the President and the Prime Minister to initiate removal proceedings in case the allegations are of a grave nature. The procedure under the JIA, 1968 may be triggered after the completion of the in-house procedure but may be initiated on its own if the requisite support for the motion is mustered. From the various intricate steps involved in the JIA, 1968, it can be ascertained that the procedure was to be used sparingly and thus, the procedural requirements are of a strict nature to discourage frivolous complaints.

Therefore, as things stand, the procedure under the JIA, 1968 is responsible for the actual removal of a judge. The in-house procedure may or may not be a precursor to the same as the only way to remove a judge is by following the procedure under the JIA, 1968 and the only relief provided by the in-house procedure is the withdrawal of judicial work and an invitation to the President and the Prime Minister to initiate proceedings for removal of the judge.

Coming to recourse against actions of an errant judge, under the existing framework withdrawal of judicial work seems to be the only mechanism to ensure discipline. The action of Chief Justice Sabyasachi Mukherjee in July 1990 to request Justice Ramaswami, who was facing allegations of impropriety, to abstain from judicial work was the right approach as it instilled a sense of confidence in the process that was being initiated in light of the allegations against Justice Ramaswami. But, within 5 months, Justice Ramaswami's judicial work was restored by Chief Justice Ranganath Misra and he continued exercising judicial functions till his retirement in 1994.

Can it be said that withdrawal of judicial work is effective in ensuring discipline? While it ensures public faith in the institution is not eroded, it cripples the functioning of the Courts and this may lead to a number of problems, especially in High Courts that are already understaffed or have a small sanctioned strength in terms of judges. Further, there may be instances where judges are towards the middle of their tenure unlike Justice Karnan and Justice Shukla who ran into trouble towards the end of their respective tenures. Therefore, withdrawing judicial work indefinitely does not have the intended effect, it merely results in a partial paralysis of our justice delivery system and there may need to be a more efficacious remedy.

Suggestions

The in-house procedure and the procedure prescribed under the JIA, 1968 provide for a comprehensive and elaborate procedure for the removal of a judge but, there are certain modifications that could possibly make the entire process slightly more efficient. For example, when there is an adverse report against a judge as per the in-house procedure and the same is forwarded to the President and the Prime Minister by the CJI, it may not be necessary to have another 3 member committee whose composition is similar to the committee that prepared the earlier report, to prepare another report as it would invariably rely upon the same material that the earlier committee did. As per Clause (3) of Section 3 under the JIA, 1968, "the committee shall frame definite charges against the judge on the basis of which the investigation is proposed to be held" and the judge in question shall have the opportunity of presenting a written statement answering the abovementioned charges. The modification that can be made here is that, the committee that is appointed by the Presiding Officer of either House, may merely restrict itself to the framing of charges on the basis of the earlier report prepared under the in-house procedure. Further, the powers of the committee as mentioned in Section 5 of the JIA, 1968 may be made applicable to the committee functioning under the in-house procedure to allow for procedural regularity. The relevant provisions of the Judges Inquiry Rules, 1969 regulating the procedure of the inquiry committee may also be made applicable to the committee set up under in the in-house procedure.

Next, the elephant in the room must be addressed, that is, an effective tool of judicial discipline for situations that may not warrant impeachment. The American experience is worth referring to as it has developed its system of accountability over the last 40 years and there are distinct similarities between the federal judicial branch of the United States and the judicial system in India as both seek to implement disciplinary measures at 3 distinct levels. The Judicial Councils Reform and Judicial Conduct and Disability Act was passed in the United States in the year 1980. Through this Act, judicial councils were set up at the level of the Court of Appeals and these councils were composed of federal judges including district judges and the composition of the judicial council for each Court of Appeal would vary from case to case as set up by the Chief Judge of the Court of Appeals. It is important to note, the power to set up the judicial council in case the complaint is against the Chief Judge himself, is bestowed upon the senior-most judge after the Chief Judge. In 2002, the Judicial Improvements Act was introduced to reorganize and clarify the existing statutory mechanism that allowed individuals to file complaints and offer more guidance to Chief Judges when evaluating individual complaints.

The salient features of this Act are that it provides for a comprehensive structure within the federal judicial system to deal with a complaint against a judge at various levels and provides for a statutory review mechanism and inherently has flexibility in constituting the judicial council on a case-to-case basis. Further, the Act is supplemented by the Rules for Judicial-Conduct and Judicial-Disability Proceedings which were amended as recently as 2019 and the rules lay down the various types of misconduct that the Act is meant to deal with as that was not mentioned in the original Act. The Act along with the Rules lay down the substantive and procedural norms to be followed when there is a complaint against a federal judge.

At this juncture, attention may be drawn to the Judicial Standards and Accountability Bill, 2010("Bill"), introduced by Parliament to replace the JIA, 1968 and sought to establish an expedient mechanism for investigating into complaints against misconduct of a Judge of the Supreme Court or of a High Court and to regulate the procedure for such investigation . The Bill has provisions similar to those found under the Judicial Reforms Act, Judicial Improvements Act and accompanying Rules for Judicial-Conduct and Judicial-Disability Proceedings that are in place in the United States. Chapter V of the Bill specified a "Complaint Scrutiny Panel" at the Supreme Court and the various High Courts which would be headed by a retired Chief Justice of India and a retired Chief Justice of the concerned High Court respectively. The Scrutiny Panel would be tasked with examining the complaints against a judge and submitting a report, either with a finding that there is sufficient material for proceeding against the judge or with a finding that there is material to proceed against the judge, to the Oversight Committee. The Oversight Committee established under Chapter VI of the Bill consists of a retired CJI appointed by the President, a Judge of the Supreme Court nominated by the CJI, the Chief Justice of a High Court nominated by the CJI, the Attorney General for India and an eminent person nominated by the President. The Oversight Committee, on a receipt of a complaint, must refer the complaint to- the Scrutiny Panel of the Supreme Court in case the complaint is against a judge of the Supreme Court or a Chief Justice of a High Court, or the Scrutiny Panel of the High Court if the complaint is against a judge of that High Court. Most importantly, in case of a complaint against the CJI, it would be taken up by the Oversight Committee.

If there is an adverse finding by the Scrutiny Panel or the Oversight Committee, as the case may be, an Investigation Committee will be set up and the selection of members at the discretion of the Oversight Committee so as to allow flexibility depending on the person against whom the complaint is. If the Oversight Committee, on receipt of a report from the Investigation Committee is of the opinion that any offence has been committed by a Judge, it may recommend to the Central Government for prosecution of the judge, thus, divesting the CJI of his powers to grant sanction for the prosecution of a judge.

The Bill sought to establish a complete code to lay down standards of accountability for judges like the system in the United States which has managed to keep the entire disciplinary mechanism within the federal judiciary without external interference. The Bill maintains the primacy of the judiciary in dealing with allegations of misconduct by judges, as is seen by the composition of the proposed Scrutiny Panels and the Oversight Committee and only when a matter is serious enough to warrant impeachment, the ball is passed to Parliament to fulfil its constitutional mandate. Since, the Bill also expressly provides for the mechanism when there is a complaint against the CJI, it can be considered as a step up from the in-house procedure of 1999 which excluded the CJI from its mandate. The Bill was passed by the Lok Sabha in March 2012 but, unfortunately could not be placed before the Rajya Sabha. A revival of this Bill in a similar form would be a welcome move in the interests of judicial accountability as it plugs a lot of holes in the existing framework.

Conclusion

Justice SN Shukla's situation cannot be viewed in isolation. He is the fourth judge in the last 10 years to face serious allegations of misconduct and this only weakens public faith in the institution of judiciary. A byproduct of this discussion is the ubiquitous and ever-growing criticism of the collegium system of appointment of judges to the higher judiciary. Such incidents are merely highlighting the woeful inadequacies of the collegium system and as the curtain closes on Justice SN Shukla's turbulent career, it may be time to go back to the drawing board to devise a feasible solution. As the situation stands, the Bill has not been passed and the existing system merely allows for the withdrawal of judicial work from an errant judge. The solution does not lie in transferring errant judges to other High Courts (which was done in Justice PD Dinakaran's case and was protested by the Sikkim Bar Association) as this would be detrimental to the administration of justice in the transferee High Court. This is due to the simple reason that if a judge is facing allegations of misconduct in one High Court and is deemed unfit to discharge judicial functions in that High Court, he cannot possibility be allowed to discharge judicial functions in the transferee High Court.

Judicial accountability is a necessary corollary to the exercise of judicial power, and it is no secret that the Supreme Court of India and various High Courts wield enormous powers thus, the discussion regarding their accountability has intensified in the past couple of decades. Dr. Arghya Sengupta in his book 'Independence and Accountability of the Indian Higher Judiciary' opines that the source of judicial accountability is the oath taken by judges on being appointed and from that it is clear as day that the judges are accountable to the Constitution of India, the very document which they are the guardians of. The 4th Chief Justice of the United States, John Marshall propounded the understanding that judges were duty bound to remain faithful to the law and summarized it as follows, " This court must not yield to feelings which might seduce it from the path of duty, it must obey the mandate of the law". The rationale behind keeping the disciplinary mechanisms within the realm and control of the judiciary is the vague and elusive concept of judicial independence, something that the Indian judiciary has fought tooth and nail to preserve and protect. Judicial independence can no longer be deployed as a cloak of invisibility, allowing the judiciary to operate unchecked and untethered. It would be in the judiciary's greatest interest to remember the oft-quoted line from the Spider-Man movie that with "great power comes great responsibility".

Views are personal only.

(Author is a student at National Law University, Jodhpur)

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