The doubtful consequences of Jagan’s war against judges

What are the Constitutional consequences of the complaint by Andhra Pradesh Chief Minister Jaganmohan Reddy with allegations against a sitting judge of the Supreme Court and some judges of the AP High Court? Will any authority examine the veracity behind the allegation of judicial ‘misconduct’? Assuming the possibility of establishing misconduct, will it lead to any action? The impeachment is an ultimate complex process to remove a judge on grounds of proved misbehaviour or incapacity, as provided in Articles 124 (4), (5), 217, and 218 of the Constitution of India, and also the provisions of the Judges (Inquiry) Act, 1968 and corresponding rules.

It all depends on how the appropriate authority - the Chief Justice of India - looks at the complaint of Jaganmohan Reddy submitted on 6 October. Jaganmohan Reddy’s decision not to wait for the response of the CJI and to release the entire content to the media has created a new situation and uncertainty over adaptation of the prescribed process. The social media is now agog with comments about this controversy. The legal circles are engaged in discussing two aspects - will the judiciary take it up as per procedure to deal with complaints or consider the exposure to media as contempt of court?

There appears an obligation on the CJI to examine the complaint of Jaganmohan Reddy. Coming from an Executive Head, i.e., elected Chief Minister of a state, the allegations of political bias cannot be brushed aside or tried for criminal contempt, because it is basically a complaint and any person has a right to complain according to the Supreme Court’s procedure prescribed for lodging complaints against sitting judges.

If a judge is found guilty, what power will the Chief Justice have? Can he terminate the judge depending upon the probe report? Perhaps, he can ask him to quit or retire or go on leave. He may also inform the Prime Minister about the conclusion. The PM may explore the possibility of concerned judge's impeachment. Still, there is a need for prescribing a procedure for people to file a complaint, provided they have any basis, against the erring judges.

Immunity

No criminal case shall be registered under section 154 of the Criminal Procedure Code (an FIR) against a judge of the High Court, Chief Justice of the High Court, or a judge of the Supreme Court unless the government first ‘consults’ the Chief Justice of India.

Section 3 of the Judges (Protection) Act of 1985 protects judges and former judges of the Supreme Court and the High Courts from “any civil or criminal proceedings” for any act, thing, or word committed, done or spoken by him in the course of their judicial duty or function. No court shall entertain such complaints. Similarly, Section 77 of the Indian Penal Code exempts judges from criminal proceedings for something said or done during judicial duties.

However, the government can initiate criminal proceedings against a sitting or former judge of a superior court under sub section (2) of Section 3 of the Judges (Protection) Act, 1985 if it can produce material evidence to show that a judgment was passed after taking a bribe.

The K. Veeraswami case (https://indiankanoon.org/doc/1269046/ decided on 25 July 1991) dealt with the application of Prevention of Corruption Act in the judiciary.

K. Veeraswami, the former chief justice of the Madras High Court, in 1976 challenged an FIR filed by the CM under the Prevention of Corruption Act on the ground that the Act did not apply to judges. The Madras High Court ruled against Veeraswami. He then appealed to the Supreme Court which dismissed Veeraswami's petition. Four of the five judges ruled against Veeraswami's petition. The majority judgment had extended PC Act’s ambit to “any criminal case”. It was held: “Due regard must be given by the government to the opinion expressed by the Chief Justice. 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”.

National Judicial Council Bill & Accountability Bill

Previous governments have made unsuccessful attempts to reform the complaining process against the judges. One Bill, the Judges (Inquiry) Bill, 2006, that seeks to replace the Judges (Inquiry) Act 1968, and another, the Judicial Standards and Accountability Bill, 2010, were not passed. The 2006 Bill sought to establish a National Judicial Council to inquire into allegations of incapacity or misbehaviour of judges of the High Courts and Supreme Court. It has defined ‘misbehaviour’ as “wilful or persistent conduct which brings dishonour or disrepute to the judiciary; or wilful or persistent failure to perform the duties of a judge; or wilful abuse of judicial office, corruption, lack of integrity; or committing an offence involving moral turpitude…”

The Judicial Standards and Accountability Bill, 2010, suggested a definition of ‘misbehaviour’ as “corruption or lack of integrity which includes delivering judgments for collateral or extraneous reasons, making demands for consideration in cash or kind”, or “any other action… which has the effect of subverting the administration of justice”. Failure to declare assets and liabilities, or wilfully giving false information was also included within the definition of ‘misbehaviour’. Sexual harassment allegation, if proved, will certainly be ‘misbehaviour’. As these Bills have not become Acts, and the 1968 Act did not define them, things are left to various interpretations.

Judges (Inquiry) Act.

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 of a High Court and for the presentation of an address by Parliament to the President and for matter, connected therewith”. This mainly deals with the stages between the admission of the removal motion and the address of the motion in the Houses of the Parliament.

Section 3 prescribes the investigation into the charges by a committee of three members, who would be selected by the chairperson or Speaker. Once formed, the committee will frame definite charges against the judge on the basis of which the investigation is proposed to be held.

Next step is that such charges, together with a statement of the grounds on which each charge is based, shall be communicated to the judge. The concerned judge facing allegations will get a reasonable opportunity to present a written statement to defend him within the time specified by the committee.

There are two grounds of removal – incapacity and misconduct. If the judge denies that he is unable to discharge the duties of office “efficiently” due to any physical or mental incapacity, the committee has to arrange for the medical examination of the judge by such medical board as may be appointed for the purpose by the Speaker or chairman. If the judge refuses to undergo the examination, the medical board shall submit a report. Then the committee may presume incapacity. The committee may, after considering the written statement of the judge and the medical report, if any, amend the charges. In such a case, the judge would be given a reasonable opportunity of presenting a fresh written statement of defence. Similarly, the judge will get an opportunity to file a written statement in defence of allegation of misconduct, and if charges are framed by the committee, there will be another chance to submit a fresh defence statement.

On the requirement of the Speaker or chairperson may appoint an advocate to conduct the case against the judge, while the judge also will be given the opportunity to appoint a lawyer, to cross-examine witnesses and to argue before the committee. After the investigation, the committee has to submit a detailed report to the Speaker or chairperson. If the report finds the judge guilty of any misbehaviour or suffers from any incapacity, then, the removal motion shall, together with the report of the committee, be taken up for consideration by the House or the Houses of Parliament.

As per Article 124 (4) of the Constitution, the motion has to be supported by a majority of the total membership of the House and a majority of not less than two-thirds of members present and voting. The motion will be placed before the President of India, after presentation of this address, may pass an order to remove the judge. It is more a political decision than an adjudication, i.e., unless the ruling party musters required two-thirds majority, it is not possible to remove a judge. The proof of allegations does not matter. Following table gives salient features of this process.

Removal Proceedings Parliament and President

• Who may file a complaint: Signed notice by at least 100 members of the Lok Sabha, or 50 members of the Rajya Sabha on charges of misbehaviour or incapacity by a judge.

• Persons to whom complaint must be filed: Presiding Officer of the Relevant Parliament

• Preliminary Inquiry: If the notice is in order, the Presiding Officer will constitute a three-member committee to investigate the complaint.

• Composition of Inquiry Committee: The committee will comprise a Supreme Court judge, Chief Justice of a High Court, and a distinguished jurist.

• Time Limit for submission of Inquiry Report: To be submitted to the presiding officer within 90 days.

• Findings of the Committee: After concluding its investigation, the Committee will submit its report to the presiding officer, who will lay the report before the relevant House.

• If the report records a finding of misbehaviour or incapacity, the motion for removal will be taken up for consideration 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 adopted in both Houses, it is sent to the President, who will issue an order for the removal of the judge.

• Process for appeals: No specific provision.

Complaint Procedure

The question is how this process gets initiated, and where the complaint could be originated. There was no clarity on this point till 2015.

Quite interestingly, the Supreme Court did not prescribe or publish any procedure for lodging complaints against judges until 2015. In 1997, a panel was constituted with three judges from the Supreme Court ¬¬– A.S Anand, S.P Bharucha, and S.C Agarwal and two chiefs of High Courts, justice P.S Mishra (Andhra Pradesh) and D.P Mohapatra (Allahabad) to formulate an in-house procedure to deal with complaints against the judges of the apex court and High Courts. It was submitted to the Supreme Court. This mechanism was adopted by the Supreme Court on 15 December 1999.

Surprisingly, though adopted in 1999 it was not made available to the public. In January 2015, that is after 15 years of its adoption, the Supreme Court chose to publish this mechanism on its official website. This also happened because there was a complaint of sexual harassment against a sitting judge of Madhya Pradesh High Court and the Chief Justice of Madhya Pradesh had initiated a probe. The accused judge approached the Supreme Court challenging the probe against him and the apex court scrapped the probe on the ground that it was not in compliance with the prescribed mechanism.

The Supreme Court said that the publicizing of this complaint receiving mechanism will further help in restoring/gaining faith of the people in the judiciary. As per the rules, if the complaint is found valid, the Chief Justice will himself investigate the case. A special Bench comprising three judges will also be constituted to initiate the probe.

Process of Complaints in SC or HC

Complaint: Complaint of misconduct may be filed by any person, to the CJI or the President of India.

Preliminary Inquiry: The CJI is required to determine whether the complaint is either frivolous or serious. If the complaint is frivolous or relates to a pending case, no further action will be taken. If the CJI finds that the complaint involves serious misconduct or impropriety, he will seek the response of the concerned judge. Based on the response and supporting materials, if the CJI finds that the complaint needs a deeper probe, he will constitute an inquiry committee.

Composition of Inquiry Committee: The Committee will comprise three judges, including a judge of the Supreme Court and two Chief Justices of other High Courts.

Time Limit for submission of inquiry report: No specific time limit provided.

Findings of the Committee: The Committee may report to the CJI that: 1. there is no substance in the allegation made, or, 2. there is substance in the allegations but the misconduct is not of such serious nature as to warrant removal, or, 3. the misconduct is serious enough to initiate removal proceedings against the judge.

Action upon submission of report:

• If the finding is under category (2) above, the CJI may call and advise the judge accordingly and direct that the report be placed on record.

• If the finding is under category (3) above, the CJI may ask the judge to resign or seek voluntary retirement. If the judge refuses to resign, the CJI may decide to not allocate any judicial work to the judge concerned.

• Further, the CJI may inform the President of India and the Prime Minister of his reasons for the action taken and forward a copy of the inquiry report to them.

Process for appeals: No appeal.

In K. Veeraswami (son-in-law of Justice V. Ramaswamy) case, justice Shetty, stated: “The judiciary... survives only by public confidence. The judge whose character is clouded and whose standards of morality and rectitude are in doubt may not have the judicial independence and may not be able to command the confidence of the public. He must voluntarily withdraw from the judicial work and administration.” This is worthy of emulation.

Thus, the examination of Jagan’s complaint is a matter of administrative discretion of the Chief Justice of India, as per the rules prescribed by the Supreme Court. When impeachment fails for lack of required majority, there is no means to enforce accountability even after proving the charges. Though it is a major lacuna in the system, it is considered as an important requisition to secure the independence of the judiciary.