Parliament must address the flaws in the current process of removing judges from office, which is riddled with systemic flaws such as the inquiry committee becoming invalid if a member retires or is elevated to the Supreme Court, or if the accused judge resigns or retires.
File photo of parliament. Credit: PTI
But before Ansari goes ahead and forms an inquiry committee to probe the allegations against Justice Reddy, parliament must decide whether the current process of removing a judge of the higher judiciary can also “impeach” him – find the concerned judge guilty of the allegations levelled against them – and subject him to consequences. According to current procedures, the motion for ‘removal’ can only be proceeded against a sitting judge. The accused judge can, however, choose when to resign, thus frustrating the very process.
The allegations
The motion for removal submitted to Ansari alleges that Justice Reddy interfered in the judicial process by physically assaulting and abusing a principal junior civil judge, S. Rama Krishna of Rayachoty in Kadappa district, on caste lines. Rama Krishna belongs to the Dalit community. It has been alleged that Justice Reddy intimidated Rama Krishna and asked him to remove the name of his brother, Pavan Kumar Reddy, from a dying declaration of a victim, which was recorded in 2012. Rama Krishna was as a magistrate at Rayachoty at the time and the victim, Ramanujulu, was a servant of his brother.
Rama Krishna, who had refused to accede to Justice Reddy’s demands, has been under suspension since then.
The Hyderabad high court, after an enquiry in November 2013, revoked the suspension order against Rama Krishna and reinstated him into service. However, the motion for Justice Reddy’s removal states that the high court’s reinstatement order was never implemented. Instead, Rama Krishna was served with another suspension order with fresh charges of misconduct in December 2013.
According to the declaration given by Ramanujulu, Pavan Kumar had doused him with petrol and set him on fire when he refused to sign a blank paper.
Justice Reddy and Pavan Kumar are native to Rayachoty, where the latter is the additional public prosecutor at the courts as well.
The motion for removal against Justice Reddy alleges that he victimised Rama Krishna for not submitting to his “illegal demands”, including, but not limited to, transferring him from Rayachoty to Chintapally.
The allegation was first carried in a memorandum submitted by the Campaign for Judicial Accountability and Reforms (CJAR) to Justice Thakur on August 30. It sought to initiate in-house proceedings against Justice Reddy. When Justice Thakur did not respond to the memorandum for nearly month, CJAR went public with it on September 27.
Other allegations against Justice Reddy include possessing wealth disproportionate to his known sources of income and non-declaration of his assets in violation of the Supreme Court’s resolution of 1997.
Systemic flaws
Justice Reddy retires on December 5, 2018. Although the removal process against him has been set in motion, it is not clear if it will yield results before he retires. The accused judge can frustrate the process by first challenging it in a court of law and thereby delaying its conclusion, and then by resigning from office.
Under the Judges (Inquiry) Act, 1968, a notice for presenting an address to the president for removing a judge has to be signed by 100 members of the Lok Sabha and submitted to the speaker. A similar notice can also be signed by 50 members of the Rajya Sabha and submitted to the chairperson of the house. If the speaker or the chairperson admits the motion, he or she must appoint a three-member committee comprising the sitting CJI or a sitting judge of the Supreme Court, a sitting chief justice of a high court and an eminent jurist.
The committee then takes over and investigates the charges of misbehaviour against the judge. It is only if this committee finds the judge guilty of any charge that either house can pursue the motion.
This process of removal is severely constrained by several systemic flaws. It is a big challenge to ensure that the composition of the three-member committee lasts before it completes its inquiry. It is unlikely that the appointed judges in the committee can complete the inquiry before their tenure ends, given that their terms are so limited. The inquiry has to start afresh if the chief justice of a high court who is a member of the committee gets appointed to the Supreme Court. This creates a vacancy that must be filled by another high court chief justice. Meanwhile, if the accused judge resigns, questions about the continuing relevance of the committee arise.
The precedents
In 2011, Justice J.S. Khehar, who was the chief justice of the Karnataka high court at the time and a member of the inquiry committee against the then Sikkim high court chief justice, P.D. Dinakaran, was elevated to the Supreme Court before the committee could complete its task.
The removal motion against Justice Dinakaran had listed 12 specific acts of misbehaviour – from possession of wealth disproportionate to known sources of income to abuse of judicial office and passing dishonest judicial orders. The inquiry committee prima facie found substance in the allegations and framed charges against him, and drew a schedule of hearings.
Meanwhile, Justice Dinakaran resigned, which led to Ansari terminating the tenure of the committee because it could only proceed against a sitting judge.
Even as the committee wanted to hear then attorney general G.E. Vahanvati on this very issue, Justice Khehar’s elevation to the Supreme Court led to a vacancy in the committee, which remained unfilled. When the committee’s chairman, Justice Aftab Alam, brought this to Ansari’s notice with the implicit suggestion that the vacancy has to be filled, the latter decided to wind up the committee as he felt Justice Dinakaran’s resignation left it infructuous.
Another case worth noting is that of Justice S.K. Gangele of the Madhya Pradesh high court, who faces a removal motion, submitted by the Rajya Sabha members to the chairman in March 2015, for alleged sexual harassment of a woman judge in Gwalior. The inquiry committee set up for the purpose was initially headed by then Supreme Court judge Vikramjit Sen and included then chief justice of the Calcutta high court, Manjula Chellur, and eminent advocate K.K. Venugopal.
Justice Sen retired on December 31, 2015, creating a vacancy. Although attorney general Mukul Rohatgi had opined that Justice Sen could continue as the member of the committee after his retirement, the law ministry favoured the alternative view that he could not. As a result, Ansari decided to treat his retirement as a vacancy.
Justice Sen was first replaced by Justice Ranjan Gogoi, who later recused himself. Justice Rohinton Fali Nariman was thus chosen to fill the vacancy in the committee in April this year.
It is obvious that both the committee and parliament are racing against time, with Justice Gangele set to retire on July 26, 2018. An in-house committee, constituted by the CJI to probe allegations against Justice Gangele, did not find any substance in them. The three-member committee headed by Justice Nariman is yet to submit its report.
Meanwhile, the committee may suffer another vacancy if Justice Chellur, currently the chief justice of the Bombay high court, is elevated to the Supreme Court. If she continues at the high court, she will retire on December 5, 2017. Even if the removal process gets completed before any of these things happen, the prospect of Justice Gangele resigning from office and frustrating the inquiry cannot be ruled out.
Justice Soumitra Sen of the Calcutta high court resigned on September 1, 2011, before the Lok Sabha was to hear him and discuss the removal motion against him on September 5, 2011. The Lok Sabha dropped the removal motion against him, as he was no longer a judge. The Rajya Sabha had passed the removal motion against him with overwhelming support from all parties on August 18, 2011. The three-member inquiry committee found Justice Sen guilty of misappropriation of large sums of money as a receiver of the court between 1984 and 2006.
Another instance is that of Justice K.L. Manjunath, who retired in April 2015 from the Karnataka high court. The Supreme Court collegium recommended his appointment as chief justice of the Punjab and Haryana high court. But the Narendra Modi government returned the file recommending his elevation because one of the Supreme Court judges who had served in the Karnataka high court had written an unfavourable note against Manjunath. Meanwhile, a signature campaign began in parliament in September 2014 for admitting a removal motion against him. But before this campaign could gather steam, Justice Manjunath retired, making it infructuous.
Need for reform
In 1993, the removal motion against Justice V. Ramaswami of the Supreme Court was defeated in the Lok Sabha because of abstention by the ruling party members. Since then, resignations by or impending retirements of the accused judges have become the effective grounds to frustrate the removal process in parliament.
Experts say that if the process of removal of a judge from office should also result in his or her ‘impeachment’, then the parliament should first address the flaws in the current process, before admitting any further motions. They suggest that any proposal for reform should include the continuing presence of a member of the inquiry committee even after their elevation or retirement. And of the removal process itself, they have recommended that the inquiry out to be brought to its logical conclusion, irrespective of the resignation or retirement of the judge concerned.