My Lord, for the judiciary’s sake

The irony is Kirpal himself asked for a ‘discreet inquiry’ into press reports ‘casting aspersions’ on high court judges in the PPSC scam. He shot off a letter to Saharya in this regard in May, about a week after he took over as chief justice of India. And Kirpal’s idea of such an inquiry is very much founded in law. In the 1995 case of Justice A.M. Bhattacharjee, the Supreme Court laid down an ‘inhouse procedure’ of inquiry into the conduct of judges facing complaints. This inhouse procedure is intended to fill a ‘constitutional gap’ which has allowed members of the higher judiciary to behave with impunity because the remedy of impeachment can be initiated only by the requisite number of MPs — 100 in the Lok Sabha or 50 in the Rajya Sabha. Saharya’s report is the first reported instance of the inhouse procedure having completed the inquiry and yielded grave findings against sitting high court judges.

By all accounts, it was no easy task for Saharya to probe allegations against his own colleagues. A network of retired and sitting judges lobbied with Punjab Chief Minister Amarinder Singh to disband the entire team of the Intelligence Department which unearthed the PPSC scam. The lobbying succeeded as the government disbanded the intelligence team on June 27. The very next day, in an extraordinary display of courage and determination, Saharya withdrew all work from the judges in question to ensure that they did not misuse their powers any further to scuttle the probe. On July 30, Saharya even put on record, in a letter to Punjab Governor J.F.R. Jacob, that the disbandment of the intelligence team ‘has hampered the probe’.

It was in the face of such odds that Saharya completed the inquiry and submitted his report to Kirpal on August 26. And it was only then that Saharya restored work after a gap of two months to the three indicted judges because he felt that ‘withdrawal of work any further would be counterproductive’. Saharya retired a fortnight later and the onus is now entirely on Kirpal to take the inhouse procedure to its logical conclusion, without fear or favour. In retrospect, the reasons Saharya gave in his order of August 27 restoring work to the three judges seem prescient: ‘further course of action regarding conduct of the judges would fall outside the ambit of my authority and there is no certainty of the time frame and the outcome of any such action’.

If anything, Saharya could have been more forthcoming and said there was uncertainty about whether any action would be taken at all on his report. When a commission of inquiry submits its report, the government is legally obliged to make it public along with an action taken report (ATR). Reflecting the same principle, the Supreme Court said in the Bhattacharjee case that once the chief justice of the high court submits his report, the chief justice of India may tender such advice or initiate such action ‘as is deemed necessary or warranted under the given facts and circumstances’. Thus, the only tenable option before Kirpal is to make Saharya’s report public without any further loss of time and take a stand on it, one way or the other. He is, of course, not obliged to accept Saharya’s findings. He may give reasons as to why he does not agree with Saharya’s findings and declare that no action is called for against the indicted judges. Alternatively, he may call upon the judges to resign as envisaged by the Bhattacharjee verdict. The judges are, of course, not legally obliged to resign but Kirpal would have at least done his duty. In either scenario, the publication of Saharya’s report will shift the burden of further action on others such as the bar, media and Parliament. As Saharya rightly said, the Punjab government hampered his probe. Kirpal must not demit his high office leaving behind a suspicion that the chief justice of India has buried the probe.