Jagan’s Allegations to CJI Against Top SC Judge: What Happens Now?

From the Supreme Court’s ‘In-House Procedure’ to contempt proceedings against the Andhra CM, here are the options.

What do you do when the head of a state government goes to war against the state judiciary?

This would have been a tricky enough problem for Chief Justice of India SA Bobde to deal with, but unfortunately, the situation he is facing is even graver – as one of the senior-most judges of the Supreme Court has also been dragged into the quagmire.

The problem in question is, of course, Andhra Pradesh Chief Minister YS Jagan Mohan Reddy’s allegations of a “nexus” between the senior Supreme Court judge, former CM Chandrababu Naidu and judges of the Andhra Pradesh High Court.

The Andhra CM detailed his allegations in a letter to the CJI dated 6 October, which he released to the press four days later. In it, he claims that the Supreme Court judge “has been influencing the sittings of the high court including the roster of a few Honourable Judges” in connection with Naidu’s Telugu Desam Party.

Reddy has alleged bias in decisions of the Andhra Pradesh High Court in favour of the TDP. Two of the specific examples raised by him of this are the stay orders on investigation of the FIRs into purchase of land in Amravati (along with an accompanying media gag order), and on the proceedings of a state cabinet sub-committee, which had been looking into actions of the TDP government.

Reddy’s move to write to the CJI despite already filing appeals in the Supreme Court against the impugned orders was itself questionable. Leaking the letter to the press has created further grounds for criticism, with questions being asked about whether this is connected with the order of the Supreme Court judge to fast-track criminal cases against MPs and MLAs, and if this is an attempt to threaten the judiciary.

But now that the cat is not just out of the bag but is out among the pigeons, what happens next? Does the CJI need to respond to Reddy’s letter? Will an inquiry have to be initiated against the Supreme Court judge and the Andhra Pradesh High Court? And what are the possible consequences for all parties concerned?

THE SUPREME COURT’S IN-HOUSE PROCEDURE

To some extent, there is a possibility that CJI Bobde could just ignore Reddy’s letter to him, and let the cases which the Andhra Pradesh government has a problem with be decided by the apex court. This would avoid having to get into the allegations of judicial propriety, and would also mean that the court might be in a better position to assess Reddy’s claims as it will have examined the material on record in those cases.

However, given a complaint has been made against judges of the Supreme Court and the AP High Court which questions their independence and integrity, there is a serious risk that this could have a prejudicial effect on the image of the higher judiciary. Regardless of the veracity of those complaints, there is a need for the court to show that it will examine them seriously and fairly, to preserve the faith of the people in the independence and impartiality of the judicial process.

These considerations were indeed behind the Supreme Court’s decision to formulate an ‘In-House Procedure’ to deal with complaints against judges of the high courts and the Supreme Court, which is why this procedure is likely to be followed by CJI Bobde in response to Reddy’s letter.

But does this mean the CJI will have to automatically order an inquiry into the allegations?

“It is absolutely up to the discretion of the CJI to decide how to proceed at the start under the In-House Procedure,” explains Justice RS Sodhi, a former judge of the Delhi High Court. “He can go into the material provided by the Chief Minister himself, and if it is scandalous and unsubstantiated, then he doesn’t need to take further action, he doesn’t even need to ask the Supreme Court judge in question for their comments.”

The In-House Procedure specifically says that when a complaint is received against a judge of the Supreme Court, the CJI is to first examine it themselves, and see if it is “either frivolous or directly related to the merits of a substantive decision in a judicial matter or does not involve any serious complaint of misconduct or impropriety.”

If the CJI is of the opinion that there is some substance to the allegations, then they have to ask for the response of the judge concerned.

If, after they have considered the allegations and the judge’s response, they still feel the matter needs a deeper probe. Then, they are to constitute a Committee consisting of three judges of the Supreme Court, which will then conduct a fact-finding inquiry into the allegations.

The judge against whom there are allegations would be entitled to appear and have their say, but this isn’t a formal judicial inquiry with examination or cross-examination of witnesses, or even representation by a lawyer. The Committee can come up with its own procedure for the inquiry, provided this is consistent with the principles of natural justice.

Since there are allegations against judges of the Andhra Pradesh high court as well, the CJI will also have to consider responses by these judges (provided he doesn’t find the claims to be frivolous or connected to a substantive judicial decision). If he finds that the allegations against these judges need to be probed further, then he has to set up another three member Committee consisting of two Chief Justices of other high courts, and a high court judge.

WHAT HAPPENS IF THE ALLEGATIONS ARE SUBSTANTIATED?

The only formal punishment for a judge of the high courts or Supreme Court is impeachment, which is however a very complicated, political process as it has be approved by the Parliament itself.

However, before getting to the stage of impeachment, there is one option for action that can be explored, if the In-House Procedure finds there is any merit to any of the allegations against the judges and this requires some action:

The CJI can advise the judge concerned (whether of the high court or the Supreme Court) to resign their office or seek voluntary retirement.

If the judge is unwilling to do so, then the nuclear option comes into play, with the CJI writing to the President and Prime Minister to inform them that the allegations are serious enough to warrant initiation of proceedings for removal, and providing a copy of the Committee’s report. Till such time as the proceedings take place, the judge(s) in question is not to be allocated any judicial work.

The next step after that is impeachment.

THE IMPEACHMENT OPTION

Technically, impeachment doesn’t require the CJI’s approval or the completion of the In-House Procedure, and can be initiated by the Parliament in accordance with Article 124(4) of the Constitution (for a SC judge) or Article 218 (for a HC judge) read with the Judges (Inquiry) Act 1968.

The steps which have to be followed for this are:

1. An impeachment motion against the judge needs to be raised in either of the Houses of the Parliament. The motion can only be admitted by the Speaker in the Lok Sabha or Chairperson (by default, the Vice-President) in Rajya Sabha if it has the required levels of support: 100 MPs in Lok Sabha or 50 MPs in Rajya Sabha.
2. If the motion is admitted, a three-member committee is set up to investigate the allegations. The committee is made up of a Supreme Court judge, the Chief Justice of any High Court, and a ‘distinguished jurist’ (read judge/lawyer/scholar) nominated by the Speaker/Vice-President.
3. Once the committee prepares its report, this has to be submitted to the Speaker/Vice-President, who then also shares it with the other House.
4. Both Houses of the Parliament then need to pass an ‘address to the President’ asking for the judge to be removed. To succeed, this needs to be passed by a 2/3 majority of the MPs present in each house during the vote, and must also exceed the 50 percent mark in each House.
5. If both addresses succeed, then the President can remove the judge from his position by Presidential Order.

The same steps have to be followed even if the CJI suggests removal of the judge.

No judge has ever been removed from office by way of the impeachment process in India, whether of the high courts or the Supreme Court. The closest the process has ever gone was in the case of Justice Soumitra Sen of the Calcutta High Court, where the Rajya Sabha passed its address to impeach him (see Step 4) but the judge retired in September 2011 before the Lok Sabha could vote.

The impeachment process of Justice V Ramaswami of the Supreme Court also reached Step 4, but the Lok Sabha address failed to get a 2/3 majority, resulting in its failure. Ramaswami served out the remainder of his tenure.

CONTEMPT OF COURT PROCEEDINGS AGAINST JAGAN REDDY?

There is another possibility in all this, of course, which is that the Supreme Court (or even the Andhra Pradesh High Court) initiates contempt proceedings against YS Jagan Mohan Reddy and leaders from his YSRCP government.

The allegations made by him would certainly appear to violate all three limbs of the concept of criminal contempt:

• Scandalising or lowering the authority of a court – by casting aspersions on sitting judges and how they have gone about their duties.
• Prejudice or interference with the due course of a judicial proceeding – by attempting to influence the appeals filed by the AP government in the Supreme Court against the HC orders.
• Interferes with or obstructs the administration of justice – by ascribing motivations to judges and decisions of the court that went against the government.

Given the Supreme Court was willing to convict Prashant Bhushan for criminal contempt for far less direct criticism, it is not difficult to see the court wanting to take stern action against these public accusations of bias. There would be no need for a contempt petition to be filed by a third party (though this has already been done), as the court can just initiate suo motu contempt proceedings here.

The fact that it is a sitting chief minister of a state saying these things, is also a factor to be considered, says Justice Sodhi, who worries that this could herald a dangerous threat to the judiciary.

“The worrying part is that a constitutional authority should attack another constitutional authority so blatantly and without even asking for a comment by the judges. A person who has this degree of constitutional power also has to have a sense of how they use that power. There is a protocol of how you use that power against an equal.”

Justice RS Sodhi

That the letter was leaked to the press also supports such concerns, he says, and will only fuel the suggestions being made in some circles that Reddy is taking this action as a response to the recent decision of the Supreme Court on fast-tracking criminal cases against MPs and MLAs.

Either way, it is going to be a bit of a tightrope for CJI Bobde to walk, to uphold the dignity and image of the judiciary, while also protecting it from what could well be an attack on it as an independent institution.