Unhealthy precedent

JUSTICE P.D. DINAKARAN. He resigned from the office of the Chief Justice of the Sikkim High Court on July 29. - K. MURALI KUMAR

Rajya Sabha Chairman Hamid Ansari's decision to wind up the committee probing the allegations against Justice Dinakaran suffers from flaws.

A TERSE notification issued by the Rajya Sabha secretariat on October 4 caused a major setback to the current process of judicial accountability in India. Signed by the Rajya Sabha Secretary-General, V.K. Agnihotri, it referred to a previous order issued by Chairman Hamid Ansari on September 23 winding up the three-member inquiry committee constituted by him to probe the allegations against Justice Paul Daniel Dinakaran Premkumar, who had resigned from the office of the Chief Justice of the Sikkim High Court on July 29.

The committee was presided over by Justice Aftab Alam of the Supreme Court and included Justice K.S. Khehar, then Chief Justice of the Karnataka High Court, and Professor Mohan Gopal, former Director of the National Judicial Academy, Bhopal. Under the Judges (Inquiry) Act, (JI Act), 1968, the committee must consist of three members, a Supreme Court judge, a High Court Chief Justice and a jurist. Ansari had chosen Mohan Gopal under the jurist category.

The notification briefly hinted at the reasons for Ansari's decision. First, it suggested that the committee's termination was the consequence of Justice Dinakaran's resignation. Second, it referred to Ansari's constitution of the committee under Subsection (2) of Section 3 of the JI Act, but was silent on the legal basis for its premature winding up. Third, it announced that the committee, accordingly, ceased to exist with effect from September 23.

The silences in the notification, understood in the context of the time line of the inquiry committee, however, told a different story about how it met its premature end. The notification, thus, has no explanation on how the committee functioned between July 29, when Justice Dinakaran resigned, and September 23 when Ansari ordered its termination. Nor does it say anything about the status of the notice of motion for removing Justice Dinakaran from the office of the Chief Justice of the Karnataka High Court (which he then was), signed by 75 Rajya Sabha members (mainly belonging to the Bharatiya Janata Party and the Left parties) and admitted by the House on December 17, 2009.

The motion had sought his removal for 12 specified acts of misbehaviour, ranging from possession of wealth disproportionate to known sources of income to abuse of judicial office to pass dishonest judicial orders.These are serious charges. The committee, prima facie, had found substance in these allegations, framed charges and even drawn a schedule of hearings from July 30.

The October 4 notification assumes that the committee's closure was an inevitable consequence of Justice Dinakaran's resignation, on the basis of the flawed contention that the committee could continue its probe only against sitting judges. A judge's resignation comes into effect immediately upon his submitting the resignation letter to the President, unless it is post-dated.

But the facts suggest that the committee itself was not convinced about the contention that it could continue its probe only against sitting judges. The committee met on July 30, in order to begin its schedule of hearings by examining witnesses. The committee had to adjourn its hearings when it was orally informed about Justice Dinakaran's resignation the previous day and his view that the committee's work was over.

On August 17, the committee met again to consider the merits of the petition submitted by the Chennai advocate and the intervenor in the case, Vaigai, stating that the committee should continue despite Justice Dinakaran's resignation. In order to decide on that petition, the committee wanted to hear Attorney-General G.E. Vahanvati and Justice Dinakaran, and issued notices to both. Justice Dinakaran's resignation had its impact on the committee's work as it raised certain constitutional issues. September 10 was set as the next date of hearing.

However, that meeting could not take place because Justice Khehar, one of the members of the committee, had been appointed to the Supreme Court and was to be sworn in on September 13. Justice Khehar's elevation to the Supreme Court resulted in a vacancy, and as a result the committee could not function.

On September 18, Justice Alam wrote to Ansari pointing out the vacancy in the committee. Justice Alam, as the presiding member of the committee, thought it necessary to bring this to his notice so that he could choose a successor to Justice Khehar and let the committee continue its work. On September 23, Ansari replied to Justice Alam citing Justice Dinakaran's resignation, adding that he saw no point in filling the vacancy created by Justice Khehar's elevation to the Supreme Court. It is a moot question whether Ansari would have allowed the committee to function even if the vacancy had not arisen in the committee on September 13.

Ansari's decision curiously fails to take note of two relevant Supreme Court judgments, delivered on July 5 and August 26, the second after Justice Dinakaran's resignation. In the first judgment, the Supreme Court Bench comprising Justices G.S. Singhvi and Chandramouli Kumar Prasad allowed Justice Dinakaran's (petitioner) allegation of bias against the then member of the committee, P.P. Rao, a senior advocate of the Supreme Court, not before passing strictures against Justice Dinakaran.

The Bench held that the belated raising of objection against the inclusion of Rao in the committee appeared to be a calculated move on Justice Dinakaran's part. He [Justice Dinakaran] is an intelligent person and knows that in terms of Rule 9(2)(c) of the Judges (Inquiry) Rules, 1969, the Presiding Officer of the committee is required to forward the report to the Chairman within a period of three months from the date the charges framed under Section 3(3) of the Act were served upon him. Therefore, he wants to adopt every possible tactic to delay the submission of report which may in all probability compel the Committee to make a request to the Chairman to extend the time in terms of proviso to Rule 9(2)(c). This Court or, for that reason, no Court can render assistance to the petitioner in a petition filed with the sole object of delaying finalisation of the inquiry, the Bench observed in its judgment.

Still, in view of its findings on the question of bias in terms of the previous Supreme Court judgments, the Bench requested Ansari to nominate another distinguished jurist in place of Rao. It held: The proceedings initiated against the petitioner [Justice Dinakaran] have progressed only to the stage of framing of charges and the Committee is yet to record its findings on the charges and submit report. Therefore, nomination of another jurist will not hamper the proceedings of the Committee and the reconstituted Committee shall be entitled to proceed on the charges already framed against the petitioner. Complying with this order, Ansari replaced Rao with Mohan Gopal.

The question of Justice Dinakaran's resignation was not before the Bench on July 5. But it has to be read along with the second judgment, delivered on August 26. In this judgment, the same Bench rejected Justice Dinakaran's plea that the committee could not legally make a preliminary inquiry prior to the framing of charges against him and that it had traversed beyond the scope of the allegations contained in the notice of the motion to remove him, as admitted by the Rajya Sabha. The Bench also rejected Justice Dinakaran's challenge to the appointment of U.U. Lalit, senior advocate of the Supreme Court, as counsel to assist the committee in the proceedings against him.

In this judgment, the Bench made significant observations, which are relevant to decide whether a judge's resignation would impact the pending proceedings against him under the JI Act. The Bench observed: An investigation into the allegation of misbehaviour or incapacity of a judge is an extremely serious matter. The members of the Lok Sabha or the Rajya Sabha are men of wisdom. They would submit a notice of motion for presenting an address to the President of India for removal of a judge only when they are prima facie satisfied that there exists tangible material warranting an investigation into the allegation of misbehaviour or incapacity of the judge [emphasis added]. When a motion is submitted, the Speaker or the Chairman, as the case may be, is not bound to admit the same as a matter of course. He may, after consulting such persons he may think fit and considering the material, if any made available to him, take decision on the admission of motion. However, if the motion is admitted, the statute requires that the Speaker or the Chairman, as the case may be, shall keep the same pending and constitute a Committee for making an investigation into the grounds on which the removal of a judge is sought.

Although the hearings in the Supreme Court on the second case concluded before July 29, the Bench delivered the judgment only on August 26. If the Bench had felt that Justice Dinakaran's resignation would not only make the committee redundant, but render its judgment with just academic value, it could have said so. But the absence of any reference to his resignation in the judgment suggests that the Bench did not consider it a factor that would have any impact on the committee's proceedings. Observers point out that Justice Dinakaran or Ansari could have approached the Supreme Court seeking clarity or a review of the judgment in view of the resignation. But they did not. It would be nave to suggest that the Bench was not aware of his resignation, when it wrote and delivered the judgment, nearly a month after he resigned.

It is, therefore, reasonable to infer that the Supreme Court, in terms of its two previous judgments in the V. Ramaswami case, considered the inquiry and removal aspects of the impeachment of judges as two distinct stages. A judge's resignation or retirement could make his removal by Parliament unnecessary, but may not render the ongoing inquiry against him by a committee set up under the JI Act redundant.

In 1992, Justice V. Ramaswami of the Supreme Court, who was found guilty by an inquiry committee set up by the Lok Sabha Speaker, could not be removed from office because the Congress members in the House had abstained during voting, leading to the defeat of the motion seeking his removal. The motion, to be successful, must be passed by the majority of not less than two-thirds of the members of that House present and voting.

In 2011, Justice Soumitra Sen of the Calcutta High Court was found guilty by the inquiry committee set up to investigate the charges against him. While the Rajya Sabha passed the motion to remove him from office, the Lok Sabha did not proceed with the debate and voting on the motion because he had, in the mean time, resigned. But the reports of inquiry committees that found Justice Ramaswami and Justice Sen guilty of misbehaviour are in the public domain, and they stood impeached in the eyes of the public, even though they evaded the rigour of removal from office.

Justice Dinakaran's case sets it apart from these two earlier cases, as it is the first time a judge has been allowed to scuttle an inquiry against him by simply resigning. This has come in for criticism from jurists, constitutional experts and Rajya Sabha MPs. Former Chief Justice of India Justice J.S. Verma felt that it would have been better if Ansari had allowed the committee to complete its task as its premature closure set a dangerous precedent.

Standards must be higher for a judge'

Raju Ramachandran, senior advocate of the Supreme Court and counsel for the P.B. Sawant Inquiry Committee set up to investigate the charges against Justice V. Ramaswami in 1991, told Frontline: A judge cannot take advantage of the fact that his resignation does not require to be accepted. For a judge, standards have to be higher than a government servant, whose resignation also cannot be accepted if an inquiry is pending against him or her. According to Ramachandran, a judge who resigns cannot be removed because he has preempted it. For the sake of accountability, however, he said, it was important that the parliamentary process was completed.

He explained: The mandate of the Judges Inquiry Committee is to inquire. It is not concerned with the removal. It is the fact-finding body. Its findings must be placed in the public domain. Therefore, this resignation can have no effect.

It is pointed out that the report to be submitted by the committee does not carry any recommendation for the removal from office, underlying this wise separation.The Supreme Court explicitly recognised this distinction between the inquiry and the removal aspects in the Subcommittee of Judicial Accountability vs UOI (1991) and in Mrs Sarojini Ramaswami vs UOI (1992). The court had, however, added that there was a synthesis, or a judicial mix of these two in our Constitution.

In the Subcommittee of Judicial Accountability case, the court's Constitution Bench held that Parliament could decide not to proceed to vote for removal of the judge even after the finding of guilt by the committee. However, if the committee finds the judge innocent, then Parliament cannot proceed further with the removal process. Another Constitution Bench reiterated these principles in the Mrs Sarojini Ramaswami case.

The JI Act does not provide for the interruption of a proceeding that has commenced. Such a power cannot be implied in the Act.

Sitaram Yechury, Communist Party of India (Marxist) member of the Rajya Sabha, who is one of the signatories to the motion to remove Justice Dinakaran, describes Ansari's action technically correct, as, in his view, once the judge ceases to be a judge, the motion for his removal can be interpreted as non-operative. But he added that the question whether the inquiry could be terminated once it had begun was a grey area. He said: As MPs, we can't proceed further with our impeachment motion. However, the interested parties can approach the courts and seek appropriate remedy.

D. Raja, Communist Party of India member of the Rajya Sabha and another signatory to the motion, felt that Ansari could have allowed the committee to complete its work as the truth of the allegations against Justice Dinakaran should be in the public domain. It is inexplicable how the Chairman could ignore the views of the signatories to the motion while deciding whether the committee set up in pursuant of that motion could continue.

The October 4 notification raises the question whether any eligible person will agree to serve on the Judges Inquiry Committee in future as a mere resignation by the accused judge can render the committee jobless. This has serious consequences for the effectiveness of the only constitutional means available to ensure judicial accountability.