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Who will guard the guards themselves?
It is one of the oldest dilemmas in civilised society: what happens when the very people who are supposed to uphold the law, and ensure it is followed, fail to do so? In modern democracies, this relates to more than just the ‘rulers’ – whether Prime Minister, President or Parliament – but also applies to the judiciary.
This is something which is becoming all the more apparent with every development in the medical bribery cases, which has cast its shadow over the judiciary like a dark cloud for months now. The latest? An in-house inquiry committee appointed by the Chief Justice of India has found that a judge of the Allahabad High Court, Justice Shri Narayan Shukla, committed judicial impropriety in one of the cases, and has recommended that he be removed from office.
What does the current structure of judicial accountability allow; has Justice Shukla been removed from office? No. Is he facing any consequences for his misconduct? Not really. The CJI has advised the Chief Justice of the Allahabad High Court to not allocate any work to him, but to avoid all of this, he’s taken a leave of absence for 90 days.
Is there any way to hold him, or any such judge, accountable? Yes. Is it difficult and unwieldy and may not lead to any actual consequences? Absolutely. Does it need to be reformed? Yes, again.
To quickly recap, the medical bribery cases involve allegations that various private medical colleges, who had been banned by the Medical Council of India from admitting new students from 2017-18 onwards, have been attempting to influence judges of the relevant High Courts and the Supreme Court, to give them favourable orders.
The most controversial of these is the Prasad Education Trust, which allegedly engaged middlemen (including a retired Orissa High Court judge) to bribe judges of the Allahabad High Court and Supreme Court to give them favourable orders. Justice Shukla headed the bench that heard their case in the High Court, while current CJI Dipak Misra headed the bench hearing it in the Supreme Court. There has been significant controversy over the handling of this case, with calls for the CJI to not be involved in any further proceedings related to the case, including petitions for a special investigation team to investigate the bribery allegations rather than the CBI. The CJI’s refusal to accept this led to him overturning orders passed by Justice Chelameswar in November 2017, which was the first public sign of trouble in the Court.
As a result, two complaints had been submitted to CJI Misra, further to the In-House Procedure formulated by the Supreme Court in the 1999. On 8 December 2017, the CJI set up a three-member committee to inquire into the allegations against Justice Shukla. According to the Indian Express, the committee conducted a “non-judicial fact-finding inquiry, where Justice Shukla was given full opportunity to defend himself”. The committee’s report, submitted to the CJI, recommended the removal of Justice Shukla from his office.
The Times of India report also claims that further to the committee’s recommendation, the CJI advised Justice Shukla to resign (this is in accordance with para 7(i) of the In-House Procedure), but Justice Shukla refused to do so. As a result, it has been reported that the CJI has advised the Chief Justice of the Allahabad High Court not to allocate any judicial work to Justice Shukla (in accordance with para 7(ii) of the In-House Procedure).
While it’s obviously a slap in the face for any judge to no longer be assigned any cases to hear, it hardly seems like Justice Shukla is facing any serious consequences for his actions. Despite there being an inquiry, conducted by the Chief Justices of the Madras and Sikkim High Courts, as well as another senior judge of the Madhya Pradesh High Court, and this inquiry making adverse findings against Justice Shukla, the best-case scenario from this was that Justice Shukla would do the right thing and resign.
On top of all of this, there have been no consequences against Justice Shukla in the Prasad Education Trust case either, where (according to the Indian Express) the CBI’s Preliminary Enquiry reportedly included information from a source that the middlemen met and handed over illegal gratification (aka a bribe) to Justice Shukla. Despite this, CJI Misra did not grant them permission to arrest him, and the FIR also couldn’t name him. So even the criminal investigation has not led to any consequences.
Although the CBI weren’t able to arrest Justice Shukla in the Prasad Education Trust matter earlier, that doesn’t necessarily mean that this can’t happen going forward. The government has to provide prior sanction before any complaint or FIR can be registered against a judge (under section 197 of the CrPC) – and when it comes to a judge of the High Courts or Supreme Court, the government has to consult with the CJI before this sanction can be given (as per the Supreme Court’s Veeraswami judgment).
Since the inquiry committee has made “adverse remarks” against Justice Shukla’s conduct in the GCRG case, it may be possible for a new FIR to be filed against Justice Shukla for his conduct there. Alternatively, this may provide the CBI with grounds to once again ask for his arrest in the Prasad Education Trust case.
But what then? This is where we come to the big stumbling block in holding judges to account – the process to remove a judge.
This is obviously not a great look for the judiciary, which has already seen so much bad press in recent months, and will only add more fuel to the fire for more government involvement in appointment of judges and executive interference with the judiciary.
At the end of the day, there is only one way to actually hold a member of the higher judiciary to account – impeachment. There is no other process to remove these judges under the Constitution of India. The process of impeachment is described in Article 124(4) of the Constitution, and the Judges (Inquiry) Act 1968.
Now that CJI Misra has got his inquiry done, and he’s seen that Justice Shukla is unwilling to give up his post, the first step towards impeachment is for the President and Prime Minister to be intimated of the concerns about Justice Shukla. The inquiry committee’s report is then placed on record. This is not crucial to the impeachment process, but could play a role in it. The mandatory steps are as follows:
The process to impeach a judge of the higher judiciary is incredibly complex, but since this is the only meaningful way to hold these judges accountable, it has to be on the cards in Justice Shukla’s case.
The difficulties should reopen the conversation about dealing with complaints against judges – a conversation which hasn’t seen many developments since the 1999 In-House Procedure was formulated. As can be seen in this instance, the Procedure doesn’t really have any significant consequences, provided the impugned judge is willing to brazen it out.
Most importantly, the In-House Procedure also needs to include a plan for how to deal with allegations against the CJI himself – currently the Procedure is silent on this point. The medical bribery case does also, lest we forget, involve allegations against the CJI, so while considering Justice Shukla’s situation, we should also be looking to see if our mechanisms can handle a complaint against him.
The elephant in the room will remain the impeachment process, but while it is a tough and unwieldy process, this is at the end of the day, a good thing. The High Courts and Supreme Court are the only institutions that can really take on the government, and hold them to account. It should therefore not be easy for these judges to be removed on the whims of the powers that be.
Other jurisdictions with similar legal systems have also been careful to have a difficult impeachment process for the higher judiciary to discourage the executive from freely wielding the axe on judges it doesn’t like, including the United Kingdom, which also requires addresses passed by special majority in the legislature. In the USA, impeachment proceedings have only ever been brought against one judge of their Supreme Court, and even that failed to pass both houses of the legislature – with good reason, as the charges against Justice Chase were trumped up on a political basis.
We’ve seen this time after time with every judge against whom impeachment proceedings have been launched, including Justices Dinakaran and Soumitra Sen. One potential lesson could be to try and introduce time limits for Parliament to deal with impeachment motions – though this could prove logistically tricky. One can only hope that the process with Justice Shukla proves an exception to the rule.
(At The Quint, we question everything. Play an active role in shaping our journalism by becoming a member today.)
Published: 02 Feb 2018,05:00 PM IST