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, “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.
