SOME OLD ARGUMENTS ON JUDICIAL INDEPENDENCE AND CORRUPTION

K.G. Sasi

1.1. THAT THE UNHEALTHY AND CORRUPT PRACTICES IN JUDICIARY ARE GRADUALLY INCREASING. HENCE ADEQUATE MECHANISM TO ADDRESS SUCH THREATS INSIDE THE JUDICIARY IS NECESSARY TO PROTECT THE FAITH OF THE PEOPLE IN JUDICIARY AND PROPER ADMINISTRATION OF JUSTICE.

Lord Atkin in Ambard v Attorney-General for Trinidad and Tobago [1936] AC 322 at 335) has remarked, “Justice is not a cloistered virtue….. She must be allowed to suffer the scrutiny and respectful, even though outspoken comments of ordinary men.” In Attorney General v. Leveller Magazine [1979] AC 440 Lord Diplock opined that, “if the way that courts behave cannot be hidden from the public ear and eye, this provides a safeguard against judicial arbitrariness or idiosyncrasy and maintains the public confidence in the administration of justice”.  In Brown v. Allen 344 US 443, Justice Jackson concluded, “There is no doubt that, if there were a super-Supreme Court, a substantial proportion of our reversals of state courts would also be reversed. We are not final because we are infallible, but we are infallible only because we are final.”

In P.N. Duda vs. P.Shiv Shanker & Ors. 1988 (3) SCC 167 When Minister P. Shiv Shankar spoke in a language like “Madhadhipatis like Keshavananda and Zamindars like Golaknath evoked a sympathetic cord nowhere in the whole country except the Supreme Court of India. And the bank magnates, the representatives of the elitist culture of this country, ably supported by industrialists, the beneficiaries of independence, got higher compensation by the intervention of the Supreme Court in Cooper's case. Antisocial elements i.e. FERA violators, bride burners and a whole horde of reactionaries have found their heaven in the Supreme Court,” the Supreme Court had the wisdom to treat it as fair criticism. Unhealthy and Corrupt practices of the higher Judiciary was unknown to people of that era.

The old saying that ‘power corrupts man and absolute power corrupts absolutely’ is held by the Court not to be applied in appeals etc. as it would undermine the proper discharge of the due administration of justice. Before India became a republic and did not have a Constitution of its own, the Constituent Assembly removed Justice Sinha from Supreme Court for being guilty of improper exercise of Judicial functions, the cumulative effect of which was to lower the dignity of his office and undermine the confidence of the public in the administration of justice. After the constitution came into existence no Judge could be removed so far.  V. Ramaswami (Son in law of Justice K. Ramaswami) was found guilty for ostentatious expenditure on his official residence and his removal motion even though in Loksabha in 1991 got simple majority of 196 against Nil, did not succeed as it did not constitute the majority of the total membership of the house, due to an abstention from the Ruling Party Indian National Congress, mainly due to the reason that Kapil Sibel, a congress leader was the Counsel of Justice Ramaswami. Chief Justice of Karnataka High Court P D Dinakaran, who was also a dalit while facing removal on charges of corruption and judicial misconduct, resigned from the post of Sikkim high court Chief Justice on 29 July 2011 expressing "lack of faith and confidence" in the three-member inquiry Committee probing charges against him. Recently Calcutta High Court Judge Soumitra Sen was found guilty of misappropriating large sums of money and making false statements regarding it. On 18 August 2011, Rajya Sabha passed the impeachment motion by overwhelming majority of 189 votes in favour and 17 against. He resigned on 1 September 2011 before the matter came up for consideration before Loksabha on 5 & 6 September 2011. All these judges do receive postretirement benefits.  In 1995     A.M. Bhattacharjee, the chief justice of the Bombay High Court was forced to resign in 1995 after it was found that he had received Rs.70 lakh as book advance from a publishing firm known to have links with the underworld.

In 1996     Ajit Sengupta , the Calcutta High Court judge made it a routine to issue ex parte, ad interim stay orders on anticipatory bail pleas from smugglers having links with the Mumbai underworld. He was arrested in 1996 for FERA violations after retirement

In November 2002, Sunita Malviya, a Jodhpur-based doctor, alleged that a deputy registrar of the Rajasthan High Court had sought sexual favours for himself and for Justice Arun Madan to fix a case in her favour. A committee set up by former CJI G.B. Pattanaik found prima facie evidence against Justice Mr.· Arun Madan. He did not attend court anymore and resigned.

Three judges of the Punjab and Haryana High Court sought the help of disgraced PPSC chief R.P. Sidhu to ensure that their daughters and other kin topped examinations conducted by the commission. Judges are M.L. Singh, Mehtab Sing Gill & Amarbir Singh. Two inquiry panels indicted the judges. Gill and Amarbir Singh have resigned M.L. Singh continues, though no work is allotted to him.

In Gaziabad Provident Fund Scam 24 Judges were accused of which three were High Court Judges among whom Justice Tarun Chatterjee was elevated to the Supreme Court. In Para 9 of the judgment in Central Bureau of Investigation v. State Of U.P. And Others on 26 August, 2013, Allahabad High Court has stated, “The CBI filed a charge sheet under Section 120B read with Sections 420, 467, 468, 471 IPC and Section 13(2) read with Sections 13(1)(d) of PAC, 1988 in the Court of Special Judge, CBI on 03.07.2010 against six former District Judges (three of whom were later elevated to this Court and now retired), 48 Class-IV employees, 23 Class-III employees and the then Central Nazir, Ashutosh Asthana of Ghaziabad Judgeship.”

But Ashutosh Asthana, who was considered as the master mind of the crime and was willing to name all beneficiaries of the scam including the Judges, was poisoned under judicial custody and wad murdered, which according to the version of the jail authorities is a suicide only. In para 11 of the judgment Court finds, “It is said that Mr. Ashutosh Asthana, the alleged kingpin in the entire episode died unnatural death in jail. To what extent that will reflect upon the prosecution case, cannot be adjudged at this stage but has to be seen by the Trial Court.” In para 64 the Court concludes, “In the present case, besides the employees of District Judgeship, certain judicial officers have also been inducted. It is not their individual honour and social status which is at stake, but even public confidence in judicial establishment is also at the stake. The society is already shocked of having learnt of such a huge financial scam in a judicial establishment and is further likely to dwindle its faith, if the trial is prolonged. Truth with certainty, in such a sensitive important matter, should surface at the earliest, which is of utmost importance.” The offence was registered as Crime No. 152 of 2008, under Sections 409, 420, 467, 468, 471, 477A, 120 IPC and Sections 8, 9, 13(2) read with 13(1)(d) and 14 of Prevention of Corruption Act, 1988 at Police Station Kavinagar, District Ghaziabad, on 15.02.2008. But no logical conclusion in the case is arrived at so far. Even though such registration of FIR was not followed as per the dictum laid down in K. Veeraswami case, High Court and Supreme Court found the procedure adopted appropriate and issued directions accordingly.

Even when the Allahabad High Court was directing stringent action, the Court found it appropriate to issue suo motu notice for contempt to the Outlook magazine for publishing the names of the Judges involved in the blameworthy Provident Fund Scam, only to be set aside by the Supreme Court in Maheshwar Peri and others v. High Court of Judicature at Allahabad in Criminal Appeal No. 549 of 2016 on the ground of limitation of one year as per Section 20 of the Contempt of Courts Act.

Calcutta Justice C.S. Karnan was punished by the Supreme Court for Contempt of Court in In Re, Hon’ble Shri Justice C.S. Karnan in Suo-Motu Contempt Petition (Civil) No. 1 of 2017 on the ground that he has raised allegations against High Court and Supreme Court Judges.

The Medical College Scam is a recent scam involving higher echelons of Judiciary where in Justice Narayan Shukla was subjected to Supreme Court appointed enquiry committee and was found guilty. It is reported that the Chief Justice of India using his administrative power has restricted Justice Narayan Shukla from hearing cases and that CJI has written to the President and Prime Minister to consider the removal of Justice Narayan Shukla.

All Collegium members of the Supreme Court except the Chief Justice of India called a press meeting on 12.01.2018 and stated that the Supreme Court is not functioning properly and that democracy will not survive if that institution is not protected. It is revealed that there is no transparency in allocation of cases among benches, that the senior most Judges of the Supreme Court are neglected in the functioning of the Supreme Court and that the case in respect of Justice Loya is one among the issues.

It is evident from the above that the unhealthy and corrupt practices in judiciary are gradually increasing.

In In Re, Hon’ble Shri Justice C.S. Karnan, in their joint judgment, Justice Chelameshwar and Justice Ranjan Gogoi has remarked,

“28. We are only sad to point out that apart from the embarrassment that this entire episode has caused to the Indian Judiciary, there are various other instances (mercifully which are less known to the public) of conduct of some of the members of the judiciary which certainly would cause some embarrassment to the system.”

 Hence adequate mechanism to address such threats inside the judiciary is necessary to protect the faith of the people in judiciary and proper administration of justice. Thus it is high time to have a mechanism for judging the judges.

1.2. THAT THE SUPREME COURT IN MANY JUDGMENTS HAVE REITERATED THAT A SEPARATE MECHANISM OTHER THAN IMPEACHMENT IS NECESSARY TO CURTAIL THE MISCARRIAGE OF JUDICIAL INTEGRITY BY HIGHER ECHELONS OF JUDICIARY.

In In Re, Hon’ble Shri Justice C.S. Karnan, Justice Chelameshwar and Justice Ranjan Gogoi expresses their anguish as,

“But the standards and procedure for impeachment of judges are much more rigorous for reasons obvious. There can be deviations in the conduct of the holders of the offices of constitutional courts which do not strictly call for impeachment of the individual or such impeachment is not feasible. Surely there must be other ways of dealing with such cases. The text of the Constitution is silent in this regard. May be it is time for the nation to debate this issue.”

But such warnings were issued many times earlier. But before going to them some of the Privileges of the Judges may be considered first.

Section 77 of the Indian Penal Code, 1860 is reproduced below.

“77. Act of judge when acting judicially.- Nothing is an offence which is done by a judge when acting judicially in the exercise of any power which is, or which in good faith he believes to be, given to him by law.”

Section 197 (1) of the Criminal Procedure Code, 1973 is reproduced below.

“197. Prosecution of Judges and public servants –

(1) When any person who is or was a Judge or Magistrate or a public servant not removable from his office save by or with the sanction of the Government is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction—

(a) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of the Union, of the Central Government;

(b) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of a State, of the State Government:

Provided that where the alleged offence was committed by a person referred to in clause

(b) during the period while a Proclamation issued under clause (1) of Article 356 of the Constitution was in force in a State, clause (b) will apply as if for the expression "State Government" occurring therein, the expression "Central Government" were substituted.”

Section 3 of the The Judges Protection Act (1985) gives additional protection to judges as,

“ 3. Additional protection to Judges.—(1) Notwithstanding anything contained in any other law for the time being in force and subject to the provisions of sub-section (2), no court shall entertain or continue any civil or criminal proceeding against any person who is or was a Judge for any act, thing or word committed, done or spoken by him when, or in the course of, acting or purporting to act in the discharge of his official or judicial duty or function.

(2) Nothing in sub-section (1) shall debar or affect in any manner the power of the Central Government or the State Government or the Supreme Court of India or any High Court or any other authority under any law for the time being in force to take such action (whether by way of civil, criminal, or departmental proceedings or otherwise) against any person who is or was a Judge.”

All civil or criminal cases wherein judges are involved are not heard by executives, but only by competent judicial officers as per provisions of Constitution, Civil Procedure Code, Criminal Procedure Code and Special legislations.

Feeling still unsafe from the apprehended executive harassment of Judges, the Supreme Court have given additional safeguards to protect Judges from being subjected to civil or criminal trial, precedents such as D.C. Saxena v. State of Haryana & Ors (1987 AIR 1463, 1987 SCR (3) 346) and K. Veeraswami v. Union of India ((1991) 3 SCC 655).

In D.C. Saxena v. State of Haryana & Ors the Supreme Court has refused the right of defence to the contemnor on the ground that,

“The court has to consider the nature of the imputations, the occasion of making the imputations and whether the contemnor foresees the possibility of his act and whether he was reckless as to either the result or had foresight like any other fact in issue to be inferred from the facts and circumstances emerging in the case. The reason is obviously that the court does not sit to try the conduct of a judge to whom the imputations are made. It would not be open to the contemnor to bring forward evidence or circumstances to justify or to show whether and how fairly imputations were justified because the judge is not before the Court. The defence justification to an imputation would not, therefore, be available to the contemnor. The imputation of improper motives or bias cannot be justified on the principle of fair contempt.”

This finding is a denial of the rights as provided in Sections 3 to 8 of the Contempt of Courts Act, 1971 and the defence of truth is recognised in Subramanian Swamy v. Arun Shourie (2014) 12 SCC 344. Once Justice C.S. Karnan, a Supreme Court Judge was punished in In Re, Hon’ble Shri Justice C.S. Karnan and by K. Veeraswami v. Union of India power to register FIR was given to appropriate authorities, though with sanction of Chief Justice or President of India as the case may be, the absolute immunity of the judges have been partially taken away by the Supreme Court. Thus it is corollary that interested persons may raise allegations against High Court and Supreme Court Judges with adequate proof before the appropriate authority. The law being so, it shall no more be in the interest of justice, equity and good conscience to deny the above said defences to alleged contemnors, solely for the reason that they raise allegations against sitting judges with adequate materials.

In K. Veeraswami v. Union of India, the main dispute had been whether CBI should be allowed to continue the prosecution of Justice Ramaswami for which the Chief justice gave consent. It was on the request of the counsel for CBI, the Apex Court issued the guide lines in K. Veeraswami v. Union of India. According to that judgment,

“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 an FIR against the Judge concerned after being satisfied in the matter. The President shall act in accordance with advice given by the Chief Justice of India. If the Chief Justice is of the 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.”

The grounds for arriving at the above guidelines are the following apprehensions,

1. “Frivolous prosecution and unnecessary harassment” (Justice Ray, page 683).

2. “The executive being the largest litigant is likely to misuse the power to prosecute the Judges. That apprehension in our over-litigious society seems to be not unjustified or unfounded” (Justices Shetty and Venkatachaliah, page 707). Misuse “by the executive for collateral purpose”.

3. “Publicity will have a far reaching impact on the Judge and the litigant public” (Justices Shetty and Venkatachaliah, page 708).

As the above mentioned statutory and other privileges are available to the Judges, There is no necessity for any other protection. The history in India do not reveal that any of the Judges of the higher echelons ever got removed or punished by any action initiated by the Executive.

Justices Shetty and Venkatachaliah speaks in K. Veeraswami case,

“The judiciary has no power of the purse or the sword. It survives only by public confidence and it is important to the stability of the society that the confidence of the public is not shaken. 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 command confidence of the public. He must voluntarily withdraw from judicial work and administration.”

The experience proves that such judges would stick on their posts so long as they could. For example all the three Judges against whom impeachment procedure were initiated, did not show the integrity as shown by Lal Bahadur Sastri during the railway accident, or of Minister K. Visvanathan or Veerenrakumar. Even today reports suggest that Justice Narayan Shukla is not ready to step down even though the Chief Justice of India has asked him to do so. In the circumstances, there should be some mechanism to keep away the Judges who have lost their public trust as the very foundation of Judicial integrity is based on the faith of the general public.

1.3. THAT THE VIGILANCES OF THE HIGH COURTS AND SUPREME COURTS ARE NOT SUFFICIENT EITHER LEGALLY OR FUNCTIONALLY TO ADDRESS SUCH MISCARRIAGES OF JUDICIAL INTEGRITY AND THAT THE LAW OF THE LAND PROVIDES FOR INVESTIGATIONS BY THE EMPOWERED AUTHORITIES IN ADDITION TO THE ADMINISTRATIVE ACTIONS TAKEN BY APPROPRIATE COURTS.

Supreme Courts and High Courts have their own Internal Vigilance Mechanism.

Grievances related to judiciary are forwarded to the Secretary General Supreme Court of India/Registrar General of the concerned High Court for further action, as appropriate.

Grievances relating to Judges of Supreme Court are forwarded to the Chief Justice of India and grievances related to Judges of the High Courts are forwarded to Chief Justice of the concerned High Courts for appropriate action. (As the Judiciary is independent, Government does not ask for action taken report nor sends reminders to them. Grievance holders are advised to seek information from the concerned Courts directly in this regard)

The grievance holders are advised to send the grievances pertaining to the Supreme Court/High Courts directly to them on the below mentioned e.mails in order to expedite disposal of their grievances. Eg. High Court of Kerala              rsjhc.ker@nic.in

Enquiry by Superior judges, compulsory abstaining from judicial works for certain periods, transfer etc are normal methods of curtailing miscarriage of judicial integrity. This is not seen adequate, as there is no support of law for such actions except Supreme Court Rules,

In India as detailed earlier attempt to remove judges were defeated either by political split or by resignation of the judge. The only incident where a judge got punished was in the case of C.S. Karnan, that too only as a result of an open fight against the Supreme Court Judges.

Thus it can be concluded that the Vigilance of the High Courts and Supreme Court are not sufficient either legally or functionally.

In K. Veeraswami case, facts reveal that a case was filed against justice Veeraswami for disproportionate income as early as 1977 and he was set free after 26 years in 2003 on the conclusion that the prosecution has not established its case beyond all reasonable doubt. This is an example how controlled prosecution results in acquittal.

As K. Veeraswami case set guidelines in a case wherein prosecution was sanctioned, the guidelines and subsequent decisions have only resulted in inordinate delay. Similarly the Gaziabad Provident Fund Scam also is gaining the speed of a snail. Justice delayed is justice denied.

In this regard the law of the land starting from the filing of FIR to the conviction or acquittal as provided by the Constitution, Civil procedure Code and Criminal Procedure Code are seen upset with a result that the corrupt judges benefit from it.

Section 154 of Criminal procedure Code provides for First Information Report. It is a general procedural law, which is proved to be efficient and is applicable to all Indians. In K. Veeraswami case, it is stated that “a Judge of the High Court or of the Supreme Court comes within the definition of public servant and he is liable to be prosecuted under the provisions of 'the Prevention of Corruption Act. Hence the Supreme Court is bound to facilitate the prosecution as per Prevention of Corruption Act, and therefore should liberally give prosecution sanction, in fit cases.

1.4. THAT THE CBI OR ANY OTHER INVESTIGATING AGENCY CAN INVESTIGATE THE CASE ONLY AFTER REGISTERING AN FIR. IF THERE IS NO FIR SUCH INVESTIGATING AGENCY SHALL BE INCAPACITATED FROM GATHERING EVIDENCE. VEERASWAMY CASE MANDATES THAT FIR CAN BE REGISTERED ONLY AFTER GETTING SANCTION BY THE CHIEF JUSTICE OF INDIA, OR THE PRESIDENT AS THE CASE MAY BE, AFTER PRODUCING SUFFICIENT MATERIALS FOR THE PURPOSE. THIS IS CONTRARY IN ITSELF AND ULTRA VIRES. THERE SHOULD ME PROPER AND EFFICIENT MECHANISM TO ADDRESS ALLEGATIONS AGAINST JUDICIAL OFFICERS, ON THE GROUND OF AVAILABLE EVIDENCE.   THAT IF THE PETITIONERS MAKING ALLEGATIONS AGAINST JUDICIAL OFFICERS, ARE DEALT WITH AS IN D.C. SAXENA CASE, NOBODY SHALL DARE TO GIVE EVIDENCE AGAINST JUDGES AND JUDICIAL MISCARRIAGE SHALL REMAIN BURIED AND SHALL STRENGTHEN. 

In Braj Kishore Thakur v. Union of India And Others (1997) 4 SCC 65, Supreme Court of India has warned that “No greater damage can be caused to the administration of justice and to the confidence of people in judicial institutions when judges of higher courts publicly express lack of faith in the subordinate judges.” Such practice of highly criticizing subordinate judges were common due to their miscarriage in judicial functions.

Judgment in Lalita Kumari v. Govt. of U.P.& Ors on 12 November, 2013 Supreme Court has issued the following guide lines,

“i) Registration of FIR is mandatory under Section 154 of the Code, if the information discloses commission of a cognizable offence and no preliminary inquiry is permissible in such a situation.

ii) If the information received does not disclose a cognizable offence but indicates the necessity for an inquiry, a preliminary inquiry may be conducted only to ascertain whether cognizable offence is disclosed or not.

iii) If the inquiry discloses the commission of a cognizable offence, the FIR must be registered. In cases where preliminary inquiry ends in closing the complaint, a copy of the entry of such closure must be supplied to the first informant forthwith and not later than one week. It must disclose reasons in brief for closing the complaint and not proceeding further.

iv) The police officer cannot avoid his duty of registering offence if cognizable offence is disclosed. Action must be taken against erring officers who do not register the FIR if information received by him discloses a cognizable offence.

v) The scope of preliminary inquiry is not to verify the veracity or otherwise of the information received but only to ascertain whether the information reveals any cognizable offence.

vi) As to what type and in which cases preliminary inquiry is to be conducted will depend on the facts and circumstances of each case. The category of cases in which preliminary inquiry may be made are as under:

a) Matrimonial disputes/ family disputes

b) Commercial offences

c) Medical negligence cases

d) Corruption cases

e) Cases where there is abnormal delay/laches in initiating criminal prosecution, for example, over 3 months delay in reporting the matter without satisfactorily explaining the reasons for delay.

The aforesaid are only illustrations and not exhaustive of all conditions which may warrant preliminary inquiry.

vii) While ensuring and protecting the rights of the accused and the complainant, a preliminary inquiry should be made time bound and in any case it should not exceed 7 days. The fact of such delay and the causes of it must be reflected in the General Diary entry.

viii) Since the General Diary/Station Diary/Daily Diary is the record of all information received in a police station, we direct that all information relating to cognizable offences, whether resulting in registration of FIR or leading to an inquiry, must be mandatorily and meticulously reflected in the said Diary and the decision to conduct a preliminary inquiry must also be reflected, as mentioned above.”

Section 156 of the Cr.P.C. mandates that any officer in charge of a police station may, without the order of a Magistrate, investigate any cognizable case which a Court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIII. No proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate. Any Magistrate empowered under section 190 may order such an investigation as abovementioned.”

Thus for an investigation law mandates that an order of court is not essential. Therefore, the judgment in Veeraswami case is ultra vires Cr.P.C.