CRITICAL ANALYSIS OF PROSECUTION OF JUDGES IN INDIA

The Authors for this brilliant piece are Aayush Akar & Muskan Meshram Prakash, 2nd-Year students pursuing  BA.LLB (Hons.) from National Law University, Odisha.

As mentioned by the former Chief Justice of India, S P Bharucha that in the judiciary mostly 80% of the judges are honest which itself is throwing light on the rest of the judges which are corrupt. Former controversies of the erstwhile judges including Veeraswami, Ramaswamy and Mukherjee reflected the need for checks and balances on the power of the judiciary. Justice BN Agarwal while hearing the petition of Prashant Bhushan, Senior Counsel representing the India Transparency International said that the judges are not borne in the heaven but have also transpired from the society which produces corrupted lawmakers. But he was a hypocrite in his stance as he later rescued from this case when Mr Bhushan desired the initiation of criminal machinery against the judges of Court of law. Mr Bhushan said that the Apex Court was shielding the suborned judges via application of Veeraswami Case where the Highest Constitutional Court held that judges are immune from vicarious detention.

The question which arises whether initiation of criminal machinery is possible against the sitting judges. The Supreme Court clarified the answer in the infamous Veeraswami v. Union of India Case. The following case initially deals with “Prevention of Corruption Act” in the judiciary but the Apex Court enlarged it to any of the criminal cases. In case of registration of FIR, the President has to take consultation of the CJI and in his case, Government will consult either former judge or present judge of the Apex Court. Since CJI is “participatory functionary” in the nomination of judges, therefore CJI consultation is peremptory. Even his second consultation is required for giving sanction for detention. This implies the ultimate fate of the judge is in the hand of the CJI. This created a loophole in the criminal law as to when the judge has given consent for FIR against CJI, then who will again give consultation. This is also assumed that the nominated judge will provide a shield to the CJI to maintain the dignity of the office. This was clear in the two instances “when the former CJI permitted CBI to lodge FIR against the Justice SN Shukla of the Allahabad High Court for medical admission scam”. The decision of the CJI came after an internal committee of the Apex Court found the siting judge guilty of misconduct.

The same CJI became a judge in his cause when the allegations of sexual harassment were raised against him in 2018. So, the question arises here just for the sake of independence of the judiciary, the Veeraswami Case has become a shield for the protection of the judges. It must be noted that it is pertinent for the plausibility of the dignity of the temple of justice, the CJI should not preside over the hearing of the matter. The Supreme Court declared that the Bench would consider "an issue of considerable public interest affecting the integrity of the courts". The case was regarded as a suo motu appeal. The Court order confirmed that the "inherent jurisdiction" was exercised by the Supreme Court. A reading of the in-house proceedings about judges of the Highest Court and the High Court, the "Sexual Harassment of Women at the Workplace Act (Prevention, Prohibition and Redressal)" and the rules defined under the Sexual Assault Guidelines of the Highest court do not entail a public hearing on the judicial side without notification to the plaintiff. The half-hour open court proceedings saw the CJI verbally pass judgments on the woman in question following felony charges against her. The inquiry also argued that the accusations were intended to turn the judiciary into a "scapegoat". There is a lacuna in the criminal law as there is no proper mechanism to deal with situations of sexual harassment and assault cases against CJI.  In the lack of a due process that could provide the former employee victim with a mechanism of investigation, she had little choice but to apply to the Supreme Court judges to constitute a Special Investigation Cell consisting of Higher Court retired judges. The existing process of the Constitutional Court "Internal Complaints Committee", or the judgment of 2014 in "Additional District and Sessions Judge ' X' v. Registrar General High Court of Madhya Pradesh", is insufficient for the CJI itself to examine the suspected wrongdoing. Under the “Gender Sensitisation and Sexual Harassment of Women at the Supreme Court of India (Prevention, Prohibition and Redressal), Regulations of 2013”, it is the CJI who has authority to constitute "Internal Complaints Committee". So, in his case, it is the CJI would try to protect himself. The "Internal Complaints Committee" in the Ranjan Gogoi case did not follow “Gender Sensitisation and Sexual Harassment of Women at the Supreme Court of India (Prevention, Prohibition and Redressal), Regulations of 2013” and it did not even inform the complainant about the procedure despite her several requests.  

Even a statute created by lawmakers is protecting these judges from prosecution. In Clause 3 of the Judges (Protection) Act, 1985 is safeguarding the present and former judges of the Top Court and High Court from “any civil and criminal act” for any of the act committed in their official tenure. Similar immunity is given to judges in Section 77 IPC. In subsection 2 of Section 3 of the 1985 Act, the legislature can only institute proceedings if the substantial evidence is proved that the verdict is passed fraudulently.

Only a formal and technical arrest is allowed as per the “Delhi Judicial Service Association v. State of Gujarat”. The decision was the consequence of an infamous abuse by a couple of Gujarat police officers to the Nadiad CJM. It had the political and judiciary institutions of the nation in a state of revolt, which forced the Top Court to give procedural orders during the imprisonment of a judge. In the first instance, the court ruled that a judge "shall be charged for any offence called to the notice of the District Judge or the High Court". The accused judge shall not be brought to the police station without the direct instructions of the District Court judge, the same should be confirmed by a High Court judge and no testimony shall be reported from him or her unless in the vicinity of a prosecutor. He or she is not likely to be handcuffed. In this case, only the Apex Court gave the guidelines on how to arrest in the case of judges.

The same happened in the case of “Nilesh Ojha v. State of Maharashtra” when respondent tried to allege the judge of incompetency to try the case then Section 77 of IPC came to the rescue of the impugned judge which states that the act was lawfully done by a judge and good faith doesn’t amount to an offence. Section 3(1) and section 4 of Judges Protection Act, 1985 also mentions about the protection to judges as no criminal or civil proceeding can be initiated against a judge who spoke something or did an act while disposing of his official or judicial duty, however, in the same case it was stated that Government or High Court or the Apex Court can initiate the proceeding under subsection (2) of section 3 of the same act if it is the criminal offence of serious nature.

This was held by relying on the judgement in E S Sanjeevarao v. CBI, similarly, the sole aim of Clause 197 of CrPC behind giving immunity to judicial officers and magistrates was to provide for judicial independence and smooth functioning of the courts. If the judges will be under constant threat of being taken away of the very respect and dignity, they won’t be able to deliver verdict without fear and therefore guideline and immunity were needed however with the law developed loophole.

Many other significant officials and judges (like in J. Nirmal Yadav Bribe Case) started taking advantage of the very law which was made to protect them. These sanctions which had a purpose became the unnecessary bridge in the path of justice. Therefore, these became the grey area in the prosecution of judges. The problem was a bit answered in the Veeraswami Case guidelines but that again created a problem as there was no specification as to who can sanction if the complaint is against the CJI himself.

Therefore, every such case (like the Ranjan Gogoi Harassment Case) acts as the nail in the coffin of the role and independence of the judiciary. This needs to be taken care of by the Authorities as well as the Government.