New Delhi: The Supreme Court observed orally Tuesday that the Chief Justice of India (CJI) is empowered to recommend action in a case wherein adverse findings against a sitting judge are recorded under the in-house procedure.
This power, it said, is drawn from a conjoint reading of the Judges (Protection) Act, 1985 and Article 141 of the Constitution.
“The removal procedure is political. It’s up to Parliament to proceed or not. As far as judiciary is concerned, it is important to send a message to the society that whatever is there in the in-house procedure, it has been followed,” observed a bench of Justices Dipankar Datta and Augustine Masin that is hearing Justice Yashwant Varma’s petition challenging former CJI Sanjiv Khanna’s recommendation to remove him from office.
The bench reserved its judgement on the petition.
The 1985 Act provides additional protection to judges by limiting civil and criminal proceedings against them for actions taken while performing official or judicial duties. Article 141 states that the law declared by the Supreme Court is binding on all courts in the country.
The bench specifically pointed to Section 3(2) of the Judges (Protection) Act to support CJI Khanna’s recommendation letter to the President to initiate action against Justice Varma. The Allahabad High Court judge is at the center of the ‘cash at home’ controversy and is facing potential impeachment proceedings in Parliament for an alleged misconduct committed while holding the constitutional office.
This recommendation was based on a report submitted by an in-house probe panel that was constituted under a mechanism laid down by the Supreme Court on the judicial side. The judges stressed on the fact that the judgements supporting this in-house procedure, or a fact-finding probe, was law of the land under Article 141 of the Constitution.
Section 3(1) of the 1985 law insulates a sitting High Court judge from criminal or civil prosecution for an act, thing or word committed, done or spoken by him/her in discharge of official or judicial duty or function. However, Section 3(2) allows the Centre, State, the Supreme Court, a High Court or any other authority under law, to initiate civil, criminal or departmental proceedings or otherwise against a serving or former judge (of the HC or SC).
The judges pointed to the use of word “otherwise” in Section 3(2) to opine that it can be read as empowering the CJI to recommend removal of a judge against whom the in-house panel gives a finding.
“You are a judge within the definition of the Judges (Protection) Act. Why can’t the in-house procedure be included in ‘otherwise’ in Section 3(2) of the Act? This (CJI’s advice) is just a recommendation which the SC can under Section 3(2). This gives power to SC to take action by way of civil, criminal or departmental action or otherwise,” the judges told senior advocate Kapil Sibal, who on behalf of Justice Varma argued that the CJI could not have advised action and that removal of a sitting judge is Parliament’s sole discretion.
The bench appeared to disagree with Sibal’s contention. “What is ‘otherwise’? It has to be given some meaning. It (in-house) is a non-punitive proceeding contemplated under the in-house mechanism to maintain purity of the institution. And this procedure has been placed by several judgements (of the SC),” it said.
It further said that from the 1985 law, SC (read CJI) also gets the power to direct a Chief Justice of the High Court to withdraw judicial work. “This can be supported by otherwise (in Section 3(2)),” Justice Datta underlined.
The bench reiterated that the in-house committee report is not binding on the President, Prime Minister or Parliament. And, the judge in question would have ample opportunity to question the allegations as well as cross-examine the witnesses who have given statements. if any, against him.
The three-judge in-house inquiry committee had termed Justice Varma’s conduct after the fire incident on 14 March—which led to the discovery of the currency notes—’unnatural’, leading to certain adverse inferences against him.
When Sibal asserted that the CJI’s recommendation to initiate removal proceedings in Parliament was not legal, Justice Datta asked the senior counsel about the consequences for an additional judge of a HC, not made permanent, if there are allegations. Sibal responded that the “in-house procedure” kicks in and the judge would not be confirmed, prompting the bench to remark that a CJI’s recommendation or suggestion to remove a judge was within the confines of the law.
Sibal argued that in view of the bench’s proposition that the CJI is within authority to recommend action in terms of Section 3(2) of the Judges (Protection) Act, the bench should refer the matter to a Constitution Bench as this law should be tested on the anvil of Article 21 (right to liberty).
At this, the bench shot saying it won’t. “We shared our views so that you can impress upon us to clarify our doubts. Also, how does the recommendation affect your right under Article 21? The in-house procedure is the law. It has been in practice for 30 years. All judges know about it; when they take an oath they, promise to uphold it. The in-house procedure doesn’t say removal (of a judge),” Justice Datta said. “But action can be taken that is less than a removal. So, it can include recommendations and this cannot fall foul of Article 21.”
Reiterating that Parliament has its own powers to act against a sitting judge, the bench acknowledged Justice Varma’s concern that the video showing the discovery of burnt cash should not have been made public.
However, it added, that such incidents would not influence the members of the panel set-up under the Judges (Inquiry) Act pursuant to the orders of the Lok Sabha chairperson.
“Parliament is not supposed to be guided by what the CJI or judiciary says. If at all Parliament admits the motion and inquiry committee is set up, do you think that its members will be naive to accept whatever is in the in-house procedure? You will have the opportunity to demolish it (report) and cross-examine the witnesses then,” Justice Datta told Sibal.
The bench brushed aside media reports, which Sibal quoted to insist that CJI Khanna’s recommendation triggered the removal motion against Justice Varma. It also advised Sibal not to go into the question of why the in-house probe panel did not ascertain whose cash it was.
It repeated its concern over Justice Varma’s belated move to approach the court and felt the judge should have taken judicial recourse then, when the in-house panel was constituted, in case it aggrieved him. Instead, he submitted himself to the committee’s jurisdiction, with the hope that he would get a clean chit. And, this, the court quipped, raised doubts over the judge’s conduct, which cannot be ignored.
(Edited by Tony Rai)
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