Judges in India perform important functions. The losing party, not unexpectedly, nurses a grudge against the judge who has decided the case against him or her and at times labours under the mis-impression that the judge is corrupt. Apparently, a judge needs to be insulated from the displeasure and wrath of the losing party.
The Judges Inquiry Act, 1968, has been enacted for that purpose and for the same reason an “in house procedure” has been evolved by the Supreme Court. In India, the removal of a judge of the Supreme Court or a high court can only be by recourse to the procedure prescribed by Article 124(4) of the Constitution, popularly described as impeachment. Experience has shown that this cumbersome procedure has not achieved its intent.
The “in-house procedure” is in reality a peer review wherein the sitting judges will examine the complaint to find out if it has any substance. This envisages an informal procedure of examining the complainant and also the material which may be produced by the complainant. The objective of the “in-house procedure” is to preserve the independence of the judiciary by having the allegations against the concerned judge examined in the first instance by his peers, and not by an outside agency. The nature of inquiry is fact-finding, where the judge would have his say. It is settled law that the inquiry would not be a formal judicial inquiry. It would not involve the examination and cross-examination of witnesses. The committee can devise its own procedure consistent with the principles of natural justice.
If the allegations are found to be substantiated, then further steps will be taken as provided in the Constitution. Otherwise, the matter is closed. Reports of the Peer Committee are not made public, and are to be kept confidential, as laid down by the Supreme Court in Indira Jaising’s case (2003) 5 SCC 494.
In the present case, the Chief Justice authorised the next senior-most judge, Hon’ble Justice S A Bobde, to decide on the steps to be taken in the matter. Accordingly, a committee of three judges was constituted to look into the matter. The committee comprised the senior most puisne judge of the Supreme Court (Hon’ble Mr Justice S A Bobde) and two women judges (Hon’ble Ms Justice Indu Malhotra and Hon’ble Ms Justice Indira Banerjee). The committee duly followed the established in-house procedure, which has existed for the last 20 years, and multiple inquiries have been held under it.
The in-house procedure expressly states that no lawyers shall be permitted to participate and contemplates only sitting judges to be members of the inquiry committee. The committee, therefore, did not accede to the request of the complainant for a lawyer. The complainant appeared and was examined on three separate dates. She was permitted to produce documents and also examine documents. Thereafter, she chose to walk out and withdraw from the proceedings. Therefore, the committee was entitled in law to proceed further in the matter and complete the inquiry. In the present case, the report of the committee was submitted to the next senior-most judge competent to deal with the matter, Justice S A Bobde.
To recapitulate, in the current case, the Peer Committee examined the complainant who, then, chose to walk out. Thereafter, the Chief Justice of India was examined. The committee examined the relevant material produced by either side and thereafter gave a report holding that the complaint was bereft of substance.
Controversy has arisen about the “secretive” manner in which the Peer Committee performed its functions. The criticism is as follows: The Peer Committee did not allow assistance of a lawyer to the complainant; the report has not been given to the complainant, while it has been given to the Chief Justice of India; the report has not been made public; outsiders should have been associated with the Peer Committee.
In my opinion, the above criticism is untenable. The in-house committee procedure evolved by the Supreme Court in 1999 was followed. The objective is not to protect or absolve any judge of misconduct but to preserve the independence of the judiciary and to ensure fearless discharge of duties by judges. For the same reason, the Peer Committee must comprise only sitting judges. Peers cannot include retired judges, lawyers, politicians or even academics.
It is unfortunate that some, at lavish dinner parties, are raising fingers for untenable reasons against the three judges of the Supreme Court who gave the report, without understanding the genesis and purpose of the in-house procedure. More unfortunate is my good friend Karan Thapar’s conclusion that it is a sad day for the judiciary. Let me remind him that the in-house procedure is published on the website of the Supreme Court. It has stood the test of time.
If we do not trust judges of the Supreme Court, then God save the country. We must put a lid upon the unfortunate controversy and save the institution, the office of the Chief Justice of India, from further damage.
This article first appeared in the print edition on May 14, 2019, under the title ‘Undue criticism’. The writer is former Attorney General for India.