An in-house mechanism to discipline errant Judges of the superior judiciary is being put to test in the case of the alleged misconduct of three Judges of the Punjab and Haryana High Court.
The actual as well as the apparent independence of judiciary would be transparent only when the office holders endow those qualities which would operate as impregnable fortress against surreptitious attempt to undermine the independence of the judiciary. In short, the behaviour of the Judge is the bastion for the people to reap the fruits of the democracy, liberty and justice, and the antithesis rocks the bottom of the rule of law.
Justice K. Ramaswamy in C. Ravichandran Iyer vs. Justice A.M. Bhattacharjee & Ors. before the Supreme Court of India (1995).
INDEED, never before has the independence of the judiciary come under siege from within as it has today. Right from 1993, when impeachment proceedings against Supreme Court Judge Justice V. Ramaswami for proven misconduct while serving as the Chief Justice of the Punjab and Haryana High Court failed to secure Parliament's approval, a debate has been on within the judiciary on how to discipline errant Judges without resorting to the extreme remedy of impeachment.
In the Bhattacharjee case, a two-member Bench of the Supreme Court, comprising Justices Ramaswamy and B.L. Hansaria, held that the yawning gap between proven misbehaviour and bad conduct on the part of a non-cooperating Judge or the Chief Justice of a High Court could be rectified through an in-house procedure of self-regulation. Such a procedure, they felt, would fill the constitutional gap and have a salutary effect. When Bhattacharjee, who was the former Chief Justice of the Bombay High Court, was accused of receiving a huge royalty amount from a foreign publisher for an academic book authored by him on Muslim Law in relation to the Constitution of India, he did not have the benefit of such a procedure; he had to quit in the wake of the allegations made by the Bar. Hence, in his petition before the Supreme Court, Bhatacharjee questioned the right of the Bar Associations to demand the resignation of Judges.
The scheme of in-house procedure, as spelt out by the Bench in the Bhattacharjee case is being tried out for the first time in the case of three Judges of the Punjab and Haryana High Court, after they seem to have been indicted in a discreet inquiry conducted by Chief Justice Arun B. Saharya, for their alleged role in the scandal involving former Punjab Public Service Commission chief Ravinder Pal Singh Sidhu (Frontline, August 2).
In the Bhattacharjee case, the Bench had held that where the complaint related to a Judge of the High Court, the Chief Justice of that High Court, after verification, and if necessary after a confidential inquiry by an independent source, should satisfy himself about the truth of the imputation made by the Bar Association through its office-bearers against the Judge and consult the Chief Justice of India, where deemed necessary, by placing all facts before him. "When the Chief Justice of India is seized of the matter, to avoid embarrassment to him and to allow fairness in the procedure to be adopted in furtherance thereof, the Bar should suspend all further actions to enable the CJI to appropriately deal with the matter. This is necessary because any action he may take must not only be just but must also appear to be just to all concerned, that is, it must not even appear to have been taken under pressure from any quarter", the two-Judge Bench had held.
As in the Bhattacharjee and V. Ramaswami cases, the Punjab and Haryana High Court Bar Association demanded action against the three Judges after reports about their alleged involvement in the scam began to appear in the media. Sidhu, it was alleged, had organised the manipulation of mark-sheets and the pre-delivery of examination papers in order to help Justice Amarbir Gill's daughter Amol Gill, and Justice M.L. Singhal's daughter Sapna Singhal, gain government jobs. The third Judge, Justice Mehtab Singh Gill, allegedly funnelled several candidates through Sidhu's enterprise of fraud, and promised legal protection for Sidhu and his aides. In their testimony, Sidhu and the co-accused have confirmed the role of these three Judges. According to informed sources, Justice Saharya found, during the course of the discreet inquiry that was ordered by the Chief Justice of India, B.N. Kirpal, in mid-May, corroborative material pointing to the complicity of the Judges.
On June 29, nearly one and a half months after his discreet inquiry began, Justice Saharya decided to prevent all administrative and judicial work from being allotted to the three Judges. Justice Saharya, who has now retired, told Frontline: "Some material came into my hands. Prima facie, they were a cause for concern. In order to preserve and uphold the confidence of the people in the judiciary as a whole and in the administration of justice, it was considered appropriate to withdraw work, pending the inquiry. It would not have been in the public interest if these Judges continued to make orders." However, on August 27, citing the completion of his inquiry and the submission of the report to Justice Kirpal the previous day, Justice Saharya restarted allocating work to the three Judges. This decision, however, has caused dismay both within the Bar and outside.
Does the reassigning of work show that Justice Saharya found the three Judges innocent? Justice Saharya explained: "The withdrawal of work was not a finding of guilt, just as the restoration is not a finding of not guilty. The withdrawal of work was a procedural safeguard, not a substantive finding. Its objective was to protect and uphold the faith and confidence of the people in the administration of justice. There were specific aspersions cast in newspaper reports. Has a Judge influenced the selection of his daughter? Can a litigant appear before the Judge? If it is said that a question paper was delivered and retained till midnight before the written test, would it inspire faith and confidence?
Had the Judges continued to work, it would have only strengthened the impression that the judiciary is trying to cover up the misdeeds of Judges. From the point of view of the Judges themselves, they should not expose themselves to this kind of doubt, as it brings down their credibility. After the restoration of work following the completion of the inquiry, the chances of litigants losing faith in the system are minimal. The system has got some safeguards."
Had Justice Saharya found the allegations against the three Judges to be baseless, he would have said so while restoring work to them. On the contrary, his order of August 27 stated that he was restoring work because further action regarding the conduct of the Judges would fall outside the ambit of his authority and that there was uncertainty with regard to the time-frame and the outcome of any such action. Therefore he felt that the continuation in force of the order withdrawing work would be counter-productive.
Justice Saharya underlined the fact that the Vigilance Bureau had not taken up for proper investigation the aspect of sifarish (recommendation), which allegedly involved the Judges and a number of important persons in Punjab. In his order withdrawing work from the three Judges, Justice Saharya had said: "On the basis of information collected by me and a lot of cogent material so far gathered by the team of two senior IPS (Indian Police Service) officers nominated specially for finding out facts to assist me, I have come to the conclusion that suspected involvement of three Judges would require thorough investigation into the sifarish part of the racket. I have also come to the prima facie conclusion that this vital part of investigations so far has been directed away from involvement of Judges." Said Justice Saharya: "Some could ask what is the hullabaloo about sifarish? Why Judges ought to be exposed to such a standard? Judges enjoy credibility of the highest order and the faith and confidence of the public. Therefore a different standard is a requisite."
Moreover, the Supreme Court's judgment in the Bhattacharjee case does not give Justice Saharya the power to withdraw work once the inquiry is complete because it will be tantamount to imposing a punitive measure, whose administration does not fall within his jurisdiction. The judgment gives such a power only to the Chief Justice of India. Justice Saharya met Justice Kirpal in New Delhi on August 26 to submit the inquiry report to him. In all likelihood, Justice Saharya would have conveyed orally the gist of his report and indicated the gravity of his findings.
Also, had the Chief Justice of India disapproved of the withdrawal of work from the Judges, he could have intervened and advised Justice Saharya against such a step. But nothing of that sort was done. As Justice Saharya admitted, the decision both to withdraw and to restore work to these Judges was his own; there was no brief from Justice Kirpal on the issue.
By doubting the certainty of the time-frame within which the Chief Justice of India would decide on the further course of action against these Judges and its outcome, was Justice Saharya expressing pessimism about the efficacy of the in-house mechanism? Only time will tell. Justice Kirpal retires on November 8 and unless he makes his decision on the Saharya report public, misgivings about the in-house mechanism will persist.
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