Explained | Can FIR Be Registered Against A Sitting Judge? What Is In-House Enquiry Procedure On Complaint Against Judge?

Reports regarding the alleged recovery of unaccounted money from the residence of Justice Yashwant Verma of the Delhi High Court have sent shock waves across the legal fraternity.While it is understood that the Supreme Court Collegium is considering a proposal to transfer Justice Verma and that the Delhi HC CJ is enquiring into the matter, several concerns are being raised, quite rightly, by the general public.If a Judge is found to be in alleged possession of unaccounted cash, should not an FIR be first lodged on this issue and a criminal investigation be commenced? However, the simple answer is that at the first instance, no criminal proceedings can be initiated against a sitting Judge unless the Chief Justice of India (CJI) is consulted, as held by the Supreme Court in its judgment in K. Veeraswami v. Union of India (1991).Once the Chief Justice of India is satisfied that the allegations are prima facie credible, the CJI has to advise the President of India to allow the police to register an FIR. "In order to adequately protect a Judge from frivolous prosecution and unnecessary harassment the President will consult the Chief Justice of India who will consider all the materials placed before him and tender his advice to the President for giving sanction to launch prosecution or for filing FIR against the Judge concerned after being satisfied in the matter."Over the years, this process has come to be known as the 'In-House Procedure,' which is a confidential enquiry for institutional credibility under the charge of the CJI.The In-House Procedure was first stated in the 1991 judgment where the allegations were against a former Chief Justice of the High Court under the Prevention of Corruption Act, 1947 (PC Act).When the matter reached the Supreme Court, two important issues emerged: Are judges public servants under the PC Act? If they are, then a prior sanction is necessary to launch criminal prosecution against them.The second question was, who would be the competent authority to give that sanction?Judges are 'public servants' as per PC ActThe Veeraswami judgment holds that a judge of a High Court or a Supreme Court, including the Chief Justice of either Court, is a 'public servant' under the PC Act. Therefore, a criminal prosecution or FIR can be lodged against the judge for offences under the PC Act.Sanction is not necessary if the judge no longer holds the office.Who can remove a judge?The judgment says the President of India is the competent authority to grant sanction under the PC Act to initiate a criminal prosecution against a sitting judge. "The President, therefore, being the authority competent to appoint and to remove a Judge, of course in accordance with the procedure envisaged in Article 124, clauses (4) and (5) of the Constitution, may be deemed to be the authority to grant sanction for prosecution of a Judge under the provisions of Section 6(1)(c) in re- spect of the offences provided in section 5(1)(e) of the Prevention of Corruption Act, 1947."However, no FIR can be lodged against a judge unless the CJI is "consulted". The judgment reasons that in-house procedure protects a judge from "frivolous prosecution and unnecessary harassment". "The President shall act in accordance with advice given by the Chief Justice of India."Is the advice of CJI binding?The judgment says when the President consults the CJI, the latter has to consider all the "materials" to tender the advice. If the CJI thinks that it is not a fit case for grant of sanction, the President 'shall' not accord sanction.The judgment observes: "If the chief Justices of opinion that it is not a fit case for grant of sanction for prosecution of the Judge concerned the President shall not accord sanction to prosecute the Judge; This will save the Judge concerned from unnecessary harassment as well as from frivolous prosecution against him. Similarly in the case of Chief Justice of the Supreme Court the President shall consult such of the Judges of the Supreme Court as he may deem fit and proper and the President shall act in accordance with the advice given to him by the Judge or Judges of the Supreme Court. The purpose of grant of previous sanction before prosecuting a public servant i.e. a Judge of the High Court or of the Supreme Court is to protect the Judge from unnecessary harassment and frivolous prosecution more particularly to save the Judge from the biased prosecution for giving judgment in a case which goes against the Government or its officers though' based on good reasons and rule of law."What is the 'In-House Enquiry' procedure?In the 1995 judgment of Ravichandran Iyer v. Justice A.M. Bhattacharjee, the Supreme Court termed it an "In-House Procedure". It was stated that impeachment is a "drastic: remedy and needs to be only used in serious cases. Therefore, the Court suggested an alternative procedure when a judge of the High Court is involved. In 2015, in Additional District And Sessions v Registrar General, High...

Explained | Can FIR Be Registered Against A Sitting Judge? What Is In-House Enquiry Procedure On Complaint Against Judge?

Gursimran Kaur Bakshi

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