THE JUDICIARY -- Judging Judges In Justice G.B. Pattanaik's brief tenure as Chief Justice of India, his role in initiating the in-house machinery to probe allegations of misconduct against Judges comes under close scrutiny.
WHEN Justice G.B. Pattanaik took over as the Chief Justice of India (CJI) on November 9, 2002, it was apparent that he would not be able to achieve much in the administration of the judiciary, in view of his retirement on December 19. Of all the four CJIs the country had in 2002, Justice Pattanaik's tenure was the shortest; yet, he began a momentous chapter in the history of Indian judiciary by putting into practice the `in-house procedure' evolved in 1997 to deal with allegations of misconduct against members of the higher judiciary. However, his own contribution to its effectiveness is debatable. On August 26, the then Chief Justice of the Punjab and Haryana High Court, Justice Arun B. Saharya, had submitted a report to previous CJI B.N. Kirpal, on the allegations against three Judges of Punjab and Haryana High Court in connection with the Punjab Public Service Commission (PPSC) cash-for-jobs scam (Frontline, December 6, 2002). Justice Saharya had withdrawn work from the Judges until he submitted the report, based on a discreet inquiry at Justice Kirpal's request, to the CJI. Chief Justice Kirpal retired on November 8 without taking any follow-up action on Justice Saharya's report. Justice Kirpal reportedly recommended transfer of one of the `tainted' Judges, Justice Amarbir Singh Gill, to the Guwahati High Court and asked Justice S. Rajendra Babu of the Supreme Court to study Justice Saharya's report to arrive at the guilt of the other Judges, Justices M.L. Singhal and Mehtab Singh Gill. Justice Amarbir Singh Gill was not transferred because of opposition to the proposal from the Guwahati Bar, which felt that the Guwahati High Court was being considered a dumping ground for `tainted' Judges. Besides, transfer was never intended as a punitive measure either under the transfer policy enunciated by the Supreme Court in the Second and Third Judges' cases, or under the in-house procedure evolved by the Supreme Court in 1997. The in-house procedure does not envisage a probe by a sitting Judge of the Supreme Court into allegations against a High Court Judge. Under the procedure, if the Chief Justice of the High Court is of the opinion that the allegations against a Judge of the High Court need a deeper probe, he shall forward to the CJI the complaint and the response of the Judge concerned along with his comments. The procedure stipulates that after considering these, if the CJI thinks that a deeper probe is required, he shall constitute a three-member inquiry committee of two Chief Justices of High Courts other than the High Court to which the Judge facing the allegation belongs and one High Court Judge. The Judge concerned would be entitled to appear before the committee and have his say. Under the procedure adopted by the Supreme Court, it would not be a formal judicial inquiry involving the examination and cross-examination of witnesses and representation by lawyers. Chief Justice Pattanaik, giving effect to this procedure, constituted a committee comprising the Chief Justice of the Andhra Pradesh High Court, A.R. Lakshmanan (now elevated to the Supreme Court), the Chief Justice of the Madras High Court, B. Subhashan Reddy, and Justice Sachidanand Jha of the Allahabad High Court, to study Justice Saharya's report and examine the veracity or otherwise of the allegations against the three Judges of the Punjab and Haryana High Court. This committee submitted its report on December 8. Under the in-house procedure, the committee may conclude and report to the CJI that (a) there is no substance in the allegations contained in the complaint; or (b) there is sufficient substance in the allegations and the misconduct disclosed is so serious that it calls for initiation of proceedings for removal of the Judge; or (c) there is substance in the allegations contained in the complaint but the misconduct disclosed is not of such a serious nature as to call for initiation of proceedings for removal of the Judge.
In the case of a complaint against a Supreme Court Judge, if the CJI, in the light of the response of the Judge concerned, feels that it needs a deeper probe, he would constitute an inquiry committee of three Supreme Court Judges. The CJI shall take further action based on the findings of the committee.
Under the Constitution, a Judge of the High Court or the Supreme Court can be removed from office only by an order of the President, passed after an address by each House of Parliament, supported by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present and voting has been presented to the President in the same session for such removal on the grounds of proved misbehaviour or incapacity. The constitutional scheme proved to be cumbersome and ineffective in removing a Judge found to be guilty of misbehaviour in the only instance since Independence — the Justice V. Ramaswami case in 1993. A motion to remove him as the Judge of the Supreme court was not carried in the Lok Sabha as the MPs of the ruling Congress(I) abstained from voting on the motion, thus reducing the supporters of the motion to a minority of the total membership of the House. The effectiveness or otherwise of the in-house procedure, therefore, assumes considerable significance.
As revealed by Chief Justice Pattanaik a day before his retirement, the in-house committee appointed by him in the Punjab Judges case had concluded that the Judges' "misconduct did not warrant their removal". The committee exonerated Justice M.L. Singhal, while holding Justices Mehtab Singh Gill and Amarbir Singh Gill guilty of misconduct. Justice Pattanaik, in an interview to a newspaper, declined to go into the basis of the committee's findings.
Justice Pattanaik claimed that he was bound by the committee's report and his only option was to call the two Judges found guilty by the committee and "advice them accordingly". Justice Pattanaik, it appears, indicated to them various options, including resignation, even though it was not contemplated under the in-house procedure in cases where the committee did not recommend the tainted Judges' removal.
Following this, Justice Amarbir Singh Gill wrote to Justice Pattanaik that he would be taking leave from December 16 until his retirement in May 2003. As Mehtab Singh Gill did not get back to Justice Pattanaik on what he intended to do, Justice Pattanaik passed an order on December 15 deprecating his misconduct. His order also warned Mehtab Singh Gill to be careful in future so that no such inquiry was needed again. Justice Pattanaik recorded that since no judicial work would be done by Justice Amarbir Singh Gill until his retirement, no further action need be taken against him.
In a televised interview after retirement, Justice Pattanaik indicated that he would have liked to have far greater powers than what the in-house procedure conferred on him to discipline an errant Judge. While he could ask the Judge to go on leave, he did not have the power to stop the Judge's pay and allowances, or withdraw work from him, in case he did not comply with the advice.
In view of Justice Pattanaik's decision not to make public either Justice Saharya's report or the Justice Lakshmanan committee's report, questions are bound to be asked whether the in-house procedure has been followed in letter and spirit. A committee of four Supreme Court Judges and one Chief Justice of a High Court, headed by the then Supreme Court Judge S.C. Agrawal, devised the in-house procedure in 1997 for taking suitable remedial action against Judges who, by their acts of omission or commission, do not follow universally accepted values of judicial life. These values, according to this committee, included those in the `Restatement of Values of Judicial Life' — a 16-point code of conduct for members of the higher judiciary, adopted by the Supreme Court in May 1997 and later by all the High Courts, except those of Orissa and Gujarat.
By adopting the in-house procedure, the committee believed, a complaint against a Judge could be dealt with at the appropriate level within the institution, the allegations being examined by his peers and not by an outside agency, thereby maintaining the independence of the judiciary. It was assumed that the awareness of a machinery for examination of complaints against a Judge would preserve the people's faith in the independence and impartiality of the judicial process.
Although the procedure makes it mandatory to place on record the in-house inquiry committee's findings against a tainted Judge, Chief Justice Pattanaik chose not to make them available for public scrutiny. (When a judicial order is placed `on record' by a Judge or a Bench, it becomes a public document. Although the in-house procedure is an extra-legal mechanism, the use of the expression `on record' in it is a clear pointer to the fact that the authors of the procedure did not intend to keep the report under wraps. Therefore, the decision not to release the report of the in-house committee to the media does not appear to have any sanction in the procedure.)
Justice Pattanaik also chose not to take disciplinary action against another indicted Judge of the Rajasthan High Court, Justice Arun Madan. On December 14, a three-Judge committee set up by Justice Pattanaik confirmed the "involvement" of Justice Madan in a proposition to a woman doctor to have sex with him in exchange for a judicial favour. This committee, headed by the Chief Justice of the Punjab and Haryana High Court, Justice B.K. Roy, submitted its report to Justice Pattanaik, indicting Madan on a complaint made from Jodhpur by a woman.
Justice Pattanaik revealed in an interview that no action was being taken since the committee had also mentioned allegations of corruption against Justice Madan. And so he had ordered a further inquiry by the same committee into the corruption charges, as he was against taking piecemeal action. "I am praying to God that the final report will give some tangible material to take action," he said.
With another three-member committee headed by the Chief Justice of the Bombay High Court, Justice C.K. Thakkar, appointed by Justice Pattanaik to examine the complaints of sexual misconduct against a group of Judges of the Karnataka High Court (Frontline, January 3) yet to submit its report, Justice Pattanaik's successor, Chief Justice Visheshwar Nath Khare, will have to prove the efficacy of the in-house procedure.
Justice Khare began as the Chief Standing Counsel for the Uttar Pradesh government at the Allahabad Bench. He became a permanent Judge of the Allahabad High Court in June 1983, and Chief Justice of the Calcutta High Court in February 1996. He was appointed a Judge of the Supreme Court in March 1997. Justice Khare, who is known for his progressive judicial intervention, is due to retire on May 2, 2004, and his contribution to cleansing the judiciary will be keenly watched.
This was published in Frontline magazine long back. Now, we have Hon'ble Worship Mr. Justice Y.K. Sabarwal as the newly appointed Chief Justice of India and he is of the opinion that there is no need of any special body to scrutinize the performance or conduct of the members of judiciary. Hon'ble CJI is strong enough to cleanse the blots on judiciary on his own strength and hence State should not interfere in the judicial system.
Two Punjab and Haryana high court judges asked to proceed on leave
December 14, 2002 21:54 IST
Two judges of the Punjab and Haryana high court were on Saturday asked to proceed on "indefinite" leave after a high-level judicial committee found "prima facie true" the charges of "undue influence and misuse of office" against them. A third judge of the same court was, however, let off with a "reprimand" as he is retiring early next year, sources said in Chandigarh. Justice Amarbir Singh Gill and Justice Mehtab Singh Gill were asked by the Chief Justice of India G B Pattanaik to proceed on indefinite leave pending further action after a three-member committee headed by Andhra Pradesh Chief Justice A R Lakshmanan, submitted its report on certain charges against them. Justice M L Singh has been reprimanded by the CJI, but no action was proposed to be taken against him as he was due to retire early next year, the sources said. The Committee was set up by the CJI after allegations were levelled against the three judges that they had used their influence with the disgraced former chairman of the Punjab Public Service Commission Ravinderpal Singh Sidhu for getting jobs for their kin in the state government. Meanwhile, another three-member committee set up to probe the alleged sex scandal involving three Karnataka high court judges held an on-the-spot hearing in Mysore when the resort owner denied any such incident and the two journalists contradicting his claim. Pleading ignorance about any such incident before the committee, constituted by the CJI, the owner - K Dilip Bidappa - said the resort had no links whatsoever with the alleged scandal, and the newspapers had unnecessarily dragged its name, thereby causing a "huge loss" to him.
Journalists M B Maramkal of The Times of India and Yogi of the New Indian Express, who deposed for nearly two hours, told the committee that they stood by their reports about the alleged incident having taken place.
The committee, comprising Justice C K Thakker – Chief Justice of Bombay high court, Justice J L Gupta – Chief Justice of Kerala high court and Justice A K Patnaik of the Orissa high court will hold another sitting in Bangalore on Sunday, official sources said.
In the midst of a snowballing controversy over the alleged scandal, the Chief Justice of India had formed the committee after receipt of the second report from the Chief Justice of the Karnataka high court.
.The judicial jigsaw
January 17, 2003
The other day a three-man judicial committee set up by the Chief Justice of India indicted a Rajasthan high court judge for his 'involvement' in a proposition to a woman doctor to have sex with him in exchange for a judicial favour (Manoj Mitta's report in The Indian Express, Mumbai, December 19, 2002). However, the Chief Justice (now retired) did not take any action except order the same judicial committee to make further enquiries into the additional allegations of corruption mentioned in its earlier report against the same judge. The errant judge is thus the new CJI's baby. One other judicial committee, reporting almost simultaneously, ended almost the same way. The report of a three-member judicial committee -- constituted by the former chief justice of the Punjab and Haryana high court -- found two of that court's judges guilty of 'misconduct' in the Punjab Public Service Commission scam. The CJI, to whom the report had gone for action, concluded that the 'misconduct' disclosed was not 'grave enough' to warrant impeachment; ergo, all that happened to the duo was a slap on the wrist! What's more, he wanted the judicial committee to delineate the difference between misconduct' and 'grave misconduct.' (ibid) Trust legal eagles to debate words like 'misconduct.' In his book on the Constitution of India, P M Bakshi, the well-known authority on the subject, tells us it is the Punjab Police Manual which makes a distinction between 'misconduct' and 'gravest misconduct.' Further, he cites a Supreme Court judgment to the effect that if the court objectively finds that the conduct in question is not of the gravest kind, then only minor punishment can be awarded. In such a case, the order of dismissal would be set aside [State of Punjab v Ram (1992) 4 SCC 54 (3 judges)]. So, what the retired CJI did in the case of the two judges in the PPSC was just to follow a judicial precedent -- as simple as that. Even if 'gravest misconduct' warranted dismissal of the two judges, the CJI was powerless to do so on his own steam. It is the Constitution of India that has laid down how a judge of a high court or the Supreme Court can be removed. Its Article 124 (4) says: 'A judge of the Supreme Court shall not be removed from his office except by an order of the President passed after an address by each House of Parliament supported by a majority of the total membership of that House and by a majority of not less than two third of the members of the House present and voting has been presented to the President in the same session for such removal on the ground of proved misbehaviour or incapacity.'
For high court judges, Article 217 (b) says his/her removal from the office is to be done in the same manner provided in Article 124 (4) cited above.
In respect of the subordinate judiciary, Article 235 vests their control in the respective state high court. However, three Supreme Court judgments have held that 'the high court can suspend a judge with a view to hold disciplinary enquiry, can hold inquiries and impose punishment over judicial officers, short of 'dismissal or removal' or 'reduction in rank' which fall within the purview of the Governor under Article 311, but even such an action can be taken only on the recommendation of the High Court.' (Pg 226, Indian Constitutional Law by M P Jain, Wadhwa & Company, Nagpur, 4th edition reprint, 2002).
While a legal historian alone can tell us whether a subordinate judge has at all been removed from office in free India, one can't quite recall whether that fate has ever befallen a high court judge. And a Supreme Court judge certainly hasn't been axed in the 52-year-old constitutional history of our country.
The nearest to that was during the Narasimha Rao's Congress regime when a motion for the impeachment of Justice V Ramaswami was brought in Parliament but could not be carried because the Congress abstained from voting. (Article by Soli Sorabjee, Attorney General of India, in The Times of India, December 8, 2002).
The fallout of the two judicial committee reports on the Punjab Public Services Commission scam and on the Rajasthan judge is loud enough signal that the time has come to make our judiciary accountable to the nation like any other civil servant. Immunising judges from the law of the land is simply doing us no good; indeed, it may be doing us a lot of harm.
Fali Nariman, a Rajya Sabha member and a towering legal name, has advocated (in an article The Hindu, December 10, 2002) that India should enact a law on the lines of the one made by the USA in 1980 whereby a judicial body is empowered to take such action against a federal judge 'as is appropriate, short of removal.' Such a law, Nariman believes, 'would be appropriate to ride ourselves of the few 'black sheep,' and yet maintain and preserve the judicial independence of the higher judiciary guaranteed by our Constitution.'
This suggested remedy is totally, totally inadequate because it still doesn't deliver the punishment of loss of a job. And what, pray, has the fear of loss of one's job due to misconduct got to do with preserving one's independence? On the other hand, immunity against misdemeanours spurns misdemeanours -- in a janitor as well as a judge.
One simply can't understand, therefore, why judges should not be subjected to civil service rules and to the relevant law that is violated by him.
Take that Rajasthan judge who offered judicial favour in exchange for sex with the litigant concerned. Under Section 7 of the Prevention of Corruption Act, 1988, even the attempt to obtain any gratification (not restricted to pecuniary) from any person as a reward for doing any official act is an offence punishable by imprisonment of not less than six months. Then, with a judicial committee itself indicting the Rajasthan judge for seeking sexual favours, why can't he be prosecuted under this Section 7?
Interestingly, like a Supreme Court judge as well as a high court judge, the President of India too can be removed from office only by impeachment (Article 56) through a Parliamentary procedure laid down in Article 61. Article 56 warrants the President's impeachment for 'violation of the Constitution' which implies not only violation of a formal constitutional provision but also the conventions operating thereunder.
This violation, it is conspicuous, is not ground for impeachment of the highest judiciary even though it has increasingly tended to issue diktats on issues where only Parliament reigns supreme as in, for instance, the precise nature of electoral reforms which raised a controversy only recently. M P Jain also sees the possibility of Presidential impeachment for 'treason, bribery or other high crimes or misdemeanours' as felt by B C Das in Impeachment of India's President: A Study of the Procedure (ibid, Page 84). And to think that the President of India acts, in almost all cases, on the advice of the council of ministers.
We thus have the situation that in respect of removal from office through impeachment, the Supreme Court judge is not only at par with the President of India but even higher when it is considered that the judge is protected even from violation of a constitutional provision or of constitutional convention.
Do we wish to retain this perverse situation? That is the question which must be most seriously confronted by our people and our Parliament
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