Was it appropriate for BJP MP Meenakshi Lekhi to make comments in Parliament about making IB (Intelligence Bureau) reports on judges public – in response to questions over the transfer of Justice S Muralidhar? And is the compilation of such reports by the government legal in the first place?
During a discussion in the Lok Sabha on the Delhi violence, Congress leader Adhir Ranjan Choudhury had criticised the transfer of Justice Muralidhar from the Delhi High Court to the Punjab and Haryana High Court – which was finalised on 26 February, just hours after he had made strong remarks against the Delhi Police for failing to register FIRs against BJP leaders and others for incitement of the violence.
Lekhi did not mention Justice Muralidhar’s name, but in her response, said:
“I want to say that the IB reports about some people should be made public. Everyone will understand who was transferred and for what reason.”
Violation of Article 121 of the Constitution of India?
Sanjay Hegde, senior advocate at the Supreme Court, told The Quint – without going into the merits of the comments – that the very mention of this issue during a discussion in the Lok Sabha was unconstitutional.
“It’s clearly in violation of Article 121 of the Constitution of India, which forbids any discussion in Parliament about the conduct of judges, except in cases of impeachment. The Speaker should be moved for expunction of these remarks.”Sanjay Hegde, senior advocate, Supreme Court
Article 121 of the Constitution of India reads, "No discussions shall take place in Parliament with respect to the conduct of any Judge of the Supreme Court or of a High Court in the discharge of his duties expect upon a motion for presenting an address to the President praying for the removal of the Judge as hereinafter provided".
According to Hegde, the fact that Lekhi’s comments touched on the conduct of a judge, meant that they should be expunged from the record.
A History of ‘Farcical’ IB Reports
Speaking to The Quint, senior advocate Kamini Jaiswal noted that if such a move were being done in good faith, it might actually have been a “welcome step towards transparency”.
Transfers of judges in India are a notoriously opaque process – former apex court judge Justice Jasti Chelameswar recently told Bloomberg Quint that even members of the Supreme Court Collegium (which recommends transfers) rarely know the reasons for why a transfer of a judge of the high courts is proposed.
Such proposals come up as residual items at Collegium meetings, normally at the instance of the Chief Justice of India or some other individual judges, and are put to vote without any material being circulated to the other judges.
However, Jaiswal warns that even though transparency was required in such matters, IB reports are not necessarily the solution.
“Even if this were being seriously considered from a transparency point of view, it would only be lip service as it is a matter of record that IB reports are farcical and have found mention to be so in Supreme Court judgment.”Kamini Jaiswal, senior advocate, Supreme Court
The dubious nature of such IB reports – what Jaiswal termed “tailoring” – meant she agreed that there was a possibility that referring to them could be seen as a way of sending a message to the judiciary.
Jaiswal is not alone in being worried about the IB preparing reports about judges. In October 2019, Justice Madan B Lokur, who was one of the four Supreme Court judges who had held that unprecedented press conference regarding independence of judiciary, had raised concerns about the IB 'spying' on judges.
In an article for The Indian Express, Lokur while referring to the transfer of Chief Justice VK Tahilramani from the Madras High Court to Meghalaya High Court, wrote:
“Was she spied upon by the Intelligence Bureau (IB)? The Times of India reported on September 30 that the CJI had asked the Central Bureau of Investigation to “take further action in accordance with law” on a five-page report of the IB on financial and other irregularities alleged against her.
Should the IB be blindly believed — there is a well-known incident of a teetotaler being called a “boozer” by the IB? Was the CJI kept in the dark about her being kept under surveillance? How many other judges are being spied on?
Isn’t it somewhat unusual and frightening that judges, expected to render judgment without fear or favour, are subject to surveillance by the IB? Can their independence be guaranteed under these circumstances?”
IB reports are usually submitted before the Collegium at the time of appointment or elevation of judges.
It is significant that Lekhi's speech in Parliament alluded that there were some sort of IB reports being maintained about judges of the high courts even at other times, which were then playing a role in the decision to transfer these judges – and that an MP who is not part of the Ministry of Law and Justice is privy to these.
Justice RS Sodhi, a former judge of the Delhi High Court expressed surprise that an IB report was mentioned as the plausible explanation for the transfer of a high court judge, and said “there can be no such report.”
Some experts have opined that it may be possible for an IB report to be initiated if there is a complaint from the Law Ministry or if a state government approaches law ministry and/or if a particular bar at a high court comes up with a grievance.
However, this would require the complaint to be serious – in which case it is difficult to see why the judge could then be transferred to another high court, and not impeached.