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.
What are the Medical Bribery Cases About?
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.
The latest development, however, deals with the separate case of the GCRG Medical Institute. On 4 September 2017, Justice Narayan Shukla had made hand-written corrections to the order passed by his own bench a few days previously, allowing the college to admit students for the academic year 2017-18. This was despite express instructions from the Supreme Court which had directed that no admissions should be allowed for this college.
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).
No Consequences for Misconduct?
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.
When he refused to do so, the CJI couldn’t remove him, and couldn’t even ensure he isn’t given more cases – he could only advise the Chief Justice of the Allahabad HC to do so. So again, no consequences under the In-House Procedure.
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.
Can Justice Shukla be Arrested and Tried?
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.
Because even if everything goes according to plan – sanction is obtained to prosecute him, he’s charged and convicted under the Prevention of Corruption Act 1988 – this doesn’t mean he is automatically removed from his official position as a judge of the High Court. And with his retirement only due on 17 July 2020, this creates an incredibly awkward situation – a sitting judge of the higher judiciary, convicted of a serious offence. We already saw this to a limited extent, when Justice Karnan was sentenced by the Supreme Court to six months’ imprisonment for contempt of court before his retirement came around, disappearing for weeks and then finally going behind bars after he’s retired.
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.
The Only Effective Option: Impeachment
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:
- There needs to be an impeachment motion in either of the Houses of Parliament. The motion can only be admitted by the Speaker in the Lok Sabha or Vice-President in Rajya Sabha if it has the required levels of support: 100 MPs in Lok Sabha or 50 MPs in Rajya Sabha.
- If the motion is admitted, a three-member committee is set up to investigate the allegations. The committee is made up of a Supreme Court judge, the Chief Justice of any High Court, and a ‘distinguished jurist’ (read judge/lawyer/scholar) nominated by the Speaker/Vice-President. When serious allegations have been raised in the past against judges, we have seen this step taken. However, the remaining steps have not been followed, because during the course of the investigation, the judges have shown the good sense to retire and get themselves out of the public eye.
- Once the committee prepares its report, this has to be submitted to the Speaker/Vice-President, who then also shares it with the other House. If the committee finds that Justice Shukla is guilty of any misbehaviour, the next step gets triggered.
- Both Houses of Parliament then need to pass an ‘address to the President’ asking for Justice Shukla to be removed. To succeed, this needs to be passed by a 2/3 majority of the MPs present in each house during the vote, and must also exceed the 50 percent mark in each House. This is the furthest things have ever got in the past, in Justice Ramaswami’s case in 1993, though the motion failed to pass in the Lok Sabha.
- If both addresses succeed, then the President can remove Justice Shukla from his position.
Should the In-House Procedure be Improved?
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.
There needs to be some thought about giving more teeth to the CJI when it comes to High Court judges especially – perhaps by allowing him to temporarily suspend the judge themselves (rather than relying on the Chief Justice of the relevant High Court). This is not something which can be done in every instance of alleged misconduct – after all, Constitution does not grant the CJI administrative powers over the High Court.
However, such an order was passed in Justice Karnan’s case on the judicial side, so it is a possibility. To prevent it from becoming overreach by the CJI, it could be that such suspensions are restricted to situations where the inquiry committee finds that there has been criminal or otherwise gravely serious misconduct.
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.
Should the Impeachment Process be Reformed?
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.
If there is any reform needed to the impeachment process it is in fact that there should also be some sort of similar proceedings to take action against a judge who retires before the impeachment process is completed. Impeachment doesn’t just deal with criminal misconduct, after all, so while this may remain a possibility after a strategic retirement, in many other cases, the impropriety will go unpunished.
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.
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