How is a Supreme Court judge to be probed?

What is the mechanism in place to examine allegations of misconduct against members of the higher judiciary?

Updated - April 28, 2019 09:38 am IST

Published - April 28, 2019 12:02 am IST

The story so far: The allegations made by a former Supreme Court employee against the Chief Justice of India have brought the focus on the mechanism that exists to examine charges of misconduct against members of the higher judiciary. What exactly is the procedure involved and how was it devised?

How are allegations of misconduct against judges of High Courts and the Supreme Court dealt with?

Allegations of misconduct against serving judges of the superior judiciary, that is, the various high courts and the Supreme Court, are dealt with through an ‘in-house procedure’. Most complaints may pertain to judicial conduct, and may be at the behest of parties aggrieved by the outcome of their cases. However, some may concern the personal conduct of judges. Two purposes are served by the adoption of an internal procedure to deal with such complaints: when the allegations are examined by the judge’s peers, outside agencies are kept out, and the independence of the judiciary is maintained. Second, awareness about the existence of a mechanism to examine such complaints will preserve the faith of the people in the impartiality and independence of the judicial process. The in-house procedure envisages that false and frivolous allegations can be rejected at an early stage and only those that are not baseless, and may require a deeper probe, are taken up for inquiry.

What is the origin of the ‘in-house’ procedure?

The idea of self-regulation as a method by which allegations of misconduct against judges can be approached came up first in a 1995 case concerning the then Chief Justice of the Bombay High Court. The Chief Justice resigned amidst an uproar caused by reports that he had been paid unjustifiably high amounts by a publisher. In a case relating to this allegation, the Supreme Court outlined the procedure that may be adopted in such situations. Until then, misconduct on the part of superior court judges was perceived as something that only Parliament could deal with through the procedure for removal of judges given in the Constitution. However, the court made a distinction between ‘impeachable behaviour’ and bad behaviour. Later, in 1997, when Justice J.S. Verma took over as Chief Justice of India, he took up the issue. He circulated a document titled ‘Restatement of Values of Judicial Life’, a guide containing the essential elements of ideal behaviour for judges so that their independence and impartiality are beyond reproach. The Full Court passed a resolution that an ‘in-house procedure’ would be adopted for action against judges for acts of commission or omission that go against accepted values of judicial life.

When was the in-house procedure adopted?

A five-judge committee was formed to devise the procedure. The report of the committee was adopted by a resolution of the Full Court on December 15, 1999. This procedure has been adhered to since then. However, the in-house procedure was not in the public domain for many years. In 2014, a Supreme Court Bench directed the court’s registry to make the in-house procedure public for the sake of transparency. The court was then dealing with a serious allegation made by a woman district and sessions court judge that she faced harassment from a sitting judge of the Madhya Pradesh High Court.

How does the in-house procedure work? What are the various steps?

When a complaint is received against a High Court judge, the Chief Justice concerned has to examine it. If it is frivolous or concerns a judicial matter, she may just file the complaint and inform the Chief Justice of India. If she considers it serious, she should get a response from the judge concerned. If she is satisfied with the response and feels no further action is required, she may close the matter and keep the CJI informed. However, if the CJI feels a deeper probe is needed, she should send the complaint as well as the judge’s response to the CJI, with her own comments, for further action.

The procedure is the same if the CJI receives the complaint directly. The comments of the high court Chief Justice, the judge concerned and the complaint would be considered by the CJI. If a deeper probe is required, a three-member committee, comprising two Chief Justices from other High Courts and one High Court judge, has to be formed. The committee will hold a fact-finding inquiry at which the judge concerned would be entitled to appear. It is not a formal judicial proceeding and does not involve lawyers or examination or cross-examination of witnesses.

If the charge is against a high court Chief Justice, the same procedure of getting the person’s response is followed by the CJI. If a deeper probe is deemed necessary, a three-member committee comprising a Supreme Court judge and two Chief Justices of other High Courts will be formed.

If the charge is against a Supreme Court judge, the committee would comprise three Supreme Court judges. There is no separate provision in the in-house procedure to deal with complaints against the CJI.

What are the possible outcomes from the inquiry committee?

If it finds that there is substance in the allegations, the committee can either hold that the misconduct is serious enough to warrant removal from office, or that it is not so serious as to warrant removal. In the former case, it will call for initiation of proceedings to remove the judge. The judge concerned would be advised to resign or take voluntary retirement. If the judge is unwilling to quit, the Chief Justice of the High Court concerned would be advised to withdraw judicial work from him, and the President of India and the Prime Minister would be informed of the situation. Such an action may clear the way for Parliament to begin the political process for impeachment. In case, the committee finds substance in the allegation, but it is not grave enough to warrant removal from office, the judge concerned would be advised accordingly, and the committee’s report will be placed on record.

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