Are the high courts in India sub-ordinate to the Supreme Court? This was a question raised often. When the Supreme Court once gave a direction to the Patna High Court, certain unsavoury remarks were exchanged between the two institutions. The SC ruled that “the appellate jurisdiction inherently carries with it a power to issue corrective directions binding on the forum below and failure on the part of latter to carry out such directions or show disrespect to or to question the propriety of such directions would — it is obvious — be destructive of the hierarchical system in administration of justice.
The seekers of justice and the society would lose faith in both”. The system of appointment of judges to the higher courts was taken over by the Supreme Court itself and it had evolved the collegium system through its process of judicial reasoning of restoring independence of judiciary. Then, the question is how to remove a judge whose misbehaviour or incapacity is established? Article 124(4) and (5) of the Constitution provides for removal of a Supreme Court judge through the process of impeachment and similar power for removal of high court judge is also available under Article 218.
The removal of a judge involves voting by two-thirds of the members of Parliament present and voting when a motion of impeachment is moved. The only rider is that preceding the motion, the charges made against a judge sought to be impeached should be inquired by a Judges Inquiry Committee of three judges of which one will be a sitting judge of the Supreme Court, the second is the chief justice of a high court and the third will be an eminent jurist nominated by the Lok Sabha Speaker or the Rajya Sabha Chairman. In case the committee’s report does not establish a prima facie case against the judge, the motion to impeach him will automatically lapse.
Since the adoption of the Constitution 70 years ago, not one case of impeachment of a Supreme Court judge was ever moved before Parliament. At least in five cases, motions were brought against high court judges, but not one of them was taken to the logical end. In the early 60s when complaints were made against Justice Chandra Reddy (A.P. High Court) that he was favouring persons in the Bar, the Supreme Court was at a loss to deal with the situation.
Chief Justice Gajendra Gadkar went to Hyderabad on an unofficial visit. He writes in his biography:-“I took the Chief Justice into my confidence… I said in fairness, ‘You give me the names of your lawyers and your colleagues whom I should take into my confidence and ask relevant questions’…He supplied me with the list and it was precisely the lawyers and judges named by him in the list that I met. To my disagreeable surprise, not only all the lawyers but even most of the judges supported the complaint…
I had unfortunately come to the conclusion that many of the complaints were well founded. I also told him that I did not want to suggest any action which would discredit him in the eyes of the public, but I would propose to the Union Government to send him to Madras.” We wish we had such lawyers today practising in courts to make an informal inquiry truthful and result oriented. But we have only certain bar associations jumping into the fray and trying to save judges accused of serious misbehaviour in the name of independence of judiciary.
Time came later for the SC to evolve an in-house procedure against judges against whom serious complaints are received. A PIL was filed before the SC seeking for institutionalising a system for inquiring into the conduct of judges against whom complaints were received. The SC evolved an in-house procedure by which the CJI will satisfy himself on the worthiness of the complaint and order ‘in-house inquiry’. When a chief minister of a State takes recourse to this route with all these responsibilities and writes a letter with serious allegations to the CJI for taking action against Justice N.V. Ramana, can the complaint be thrown out even without an inquiry? His personal advisor releasing the confidential letter to the media may be an act of indiscretion. But that will not in any way minimise the seriousness of the allegations made against the judge concerned.
There is no gainsaying that this is an act of executive trying to obstruct the course of justice and hence action should be initiated against the chief minister. Even assuming that the judge concerned is inquiring into a larger issue of cleansing the political system being polluted by criminal elements dabbling in politics, that will not wipe out the seriousness of the complaints made.
If even the judiciary-evolved in-house procedure is denied to a CM, then it is not as if there are no constitutional solutions. Being the fourth largest political party in Parliament, it will be open to him to move a motion of impeachment which will also have judges inquiry into the complaint and if prima facie the misbehaviour is found to be true, then the motion will go for a political voting. Should we invite such drastic action instead of using the judicially developed concept of ‘correction from within’?
Justice (Retd) K. Chandru Former judge, Madras High Court