The recent decision of the committee appointed by the Rajya Sabha Chairman has held that a judge of the Calcutta High Court, Soumitra Sen, was prima facie guilty of grave financial offences and must face impeachment proceedings in Parliament. This has been showcased as a much-needed curative to tackle corruption in the country’s higher judiciary (the High Courts and the Supreme Court).
Indeed, the stench of graft and malfeasance from India’s palaces of justice was becoming all-pervasive. Even judges were feeling the heat, although the reaction of most of them was the usual strategy adopted by people whose privilege and status are under scrutiny. Their castles were fortified and defensive salvos were fired. However, public indignation forced the legislature and the executive (the two other constitutional branches of the Republic) to introduce some measures for judicial accountability. A wishy-washy bill was passed by Parliament and may become law in the near future.
We need to examine the backdrop. Supreme Court and High Court judges are covered under the provisions of Article 124 (4) of the Constitution and cannot be removed from office except by an order of the President, passed after a judge has been impeached by Parliament. The rules of impeachment are like a hurdle race — the accused must be pronounced guilty of “misbehaviour or incapacity” by both the Rajya Sabha and the Lok Sabha, and in each case, the verdict has to be supported by a majority of the total membership of each House and by a majority of “not less than two-thirds of the members of the House present and voting”. Article 124 (5) gives Parliament the power to frame laws that govern the entire impeachment mechanism. Pursuant to this Article, Parliament passed the Judges (Inquiry) Act in 1968.
These two Articles of the Republic’s Constitution make our senior judiciary one of the planet’s most protected species. The luminaries who framed the guiding document of the young nation with an ancient history of justice and jurisprudence would have been horrified if they had witnessed the judiciary’s peccadilloes, which we have been experiencing. And they would have been outraged that this group had extended its constitutional immunity by a self-serving pronouncement, 41 years after the Constitution came into effect. This is, of course, the Supreme Court’s landmark verdict in K Veeraswami vs Union of India and Others, {(1991) 3 SCC 655}, in which a majority of judges (4 to 1) decided on a vital issue that affects us all.
In a 100-page document, the bench ordained that any criminal case against a Supreme Court or High Court judge will be registered only after the President sanctions the prosecution, after consulting the Chief Justice of India (CJI) and in accordance with his advice. The stated rationale was that the judiciary needed to be protected against any interference by the executive. The bench went on to assert that “care should be taken that honest and fearless judges are not harassed” but are “protected”.
The operative part of the pronouncement reads as follows: “It is accordingly directed that no criminal case shall be registered under Section 154, CrPC against a Judge of the High Court, Chief Justice of High Court or Judge of the Supreme Court unless the Chief Justice of India (CJI) is consulted in the matter...If the CJI is of opinion (sic) that it is not a fit case for proceeding under the Act, the case shall not be registered...It is necessary that the CJI is not kept out of the picture of any (emphasis added) criminal case contemplated against a Judge”.
With these few lines, the Indian judiciary carried out a virtual coup against the Republic’s citizens. The ramifications are staggering; Section 154 of the CrPC deals with the dreaded First Information Report (FIR) that is every law-abiding citizen’s nightmare. This is the document that empowers any thanedar in the country to knock on your doors, even at night, and take you to a lock-up in the police station where the FIR was lodged, if the offence recorded in the FIR is non-bailable. In such an eventuality, we can forget the standard Hindi film dialogue where the victim bravely asks the police posse for the “arrest warrant”.
Thanks to the Veeraswami verdict, the Indian senior judiciary has arrogated to itself a blanket immunity that the Constitution’s framers never contemplated. An unvarnished reading of the judgment leads to the conclusion that a judge can commit any offence under the laws of the land, but his or her prosecution can only be initiated with the CJI’s permission. This is certainly the interpretation that is being currently followed by the country’s judicial and political establishments.
To make matters worse, as the Sen case demonstrates, the judiciary has extended the ratio of the Veeraswami decision to offences alleged to have been committed before a judge assumed office. Nowhere does the otherwise tainted judgment say this. Sen is charged with committing swindles when he was an ordinary mortal like the rest of us. It is absurd that the procedure prescribed under the 1968 Act, read with the relevant Articles of the Constitution, should be followed to remove him from office. This is clearly an extreme example of shadow-boxing by the nation’s elites. Citizens must ask whether this charade should continue. Why has he not been charged, so far, under the relevant sections of the IPC, as would have been done in the case of any other citizen?
If this is a portent of how future proceedings will be conducted in cases of wrongdoing — such as the Commonwealth Games or the 2G spectrum scandals — we should all be running scared.
The author is a senior corporate and business analyst in Delhi
