Writ Petition To Initiate In-House Inquiry Against Judges Alleging Misconduct Not Maintainable : Kerala High Court

The Kerala High Court recently upheld a Single bench decision that dismissed a couple of petitions seeking the constitution of an In-House Committee to probe into the alleged judicial misconduct against two judges.

While dismissing a couple of appeals, the Division Bench of Justice A.K. Jayasankaran Nambiar and Justice Mohammed Nias C.P held that the In-House Inquiry was not a 'law' for a litigant to ask for its enforcement. 

"Such an inquiry, which is in the nature of a preliminary inquiry designed to provide information to the Chief Justice concerned, cannot be seen as a 'law', for the enforcement of which a litigant can approach the superior courts by invoking its writ jurisdiction, which is a remedy provided under public law."

Significantly, the Court also observed that it was up to the Chief Justice to decide if an in-house procedure should be initiated against a judge: 

"The decision whether or not to initiate the in-house procedure against a judge is a matter that falls within the discretion of the Chief Justice, and the discretion not being one conferred under a 'law', its exercise cannot be compelled citing public interest."

The appellant had moved two writ petitions seeking the constitution of an in-house committee to probe into alleged judicial misconduct which were presented to the Registry in June 2021

The Single Judge dismissed them as not maintainable in November 2021, emphasising that entertaining such matters would be detrimental to the judicial system in its entirety.

Advocate Yeshwant Shenoy appearing for the appellant pointed out that an aggrieved person is entitled to approach a Writ Court to enforce the procedure envisaged under the In-House Procedure. ASGI S. Manu resisted the appeals. 

The primary question before the Court was whether a disgruntled party to a litigation, who believes that a judgment adverse to his interests was due to the misconduct of the presiding judge(s) can seek a mandamus to compel the Chief Justice of the court to invoke the in-house procedure against the judge(s) concerned.

The Bench observed that under the Constitution, High Court or Supreme Court judges can be removed from their office only on proved misbehaviour or incapacity, by following the procedure in Articles 124 or 217 read with the Judges (Inquiry) Act, 1968.

Since there was no other disciplinary inquiry or proceedings envisaged either under the Constitution or under any other statute in force in India, the Court opined that a litigant was not authorised to approach the courts seeking such a remedy.

"Had there been any such constitutional/statutory provision, then perhaps it may have been open to a litigant alleging misconduct of a judge, to approach the superior courts with a prayer for enforcing the said statutory provisions which would, undoubtedly, have qualified as 'law' for the purposes of our constitution."

Further, it was held that while the word 'law' is defined widely and in inclusive terms under Article 13, it must refer to something that has the force of law. However, the in-house procedure adopted by the Full Court of the Supreme Court was found not fitting that description.  

Reliance was placed on Indira Jaising v. Supreme Court of India & Anr [(2003) 5 SCC 494] where it was held that the procedure was adopted for inquiry to be made by the peers of judges to report to the CJI in case of a complaint against Chief Justices or Judges of a High Court to verify the truth behind the allegations.

It was found that such an inquiry cannot be seen as a 'law'.

The Bench also relied on Registrar General, High Court of Madras v. R. Gandhi & Ors. [(2014) 11 SCC 547] where, while considering a plea that questioned the competence of persons recommended for elevation as High Court judges, the court opined that while the lack of eligibility of the candidates or lack of effective consultation could be scrutinized in a writ petition, suitability of the candidates, being a matter of opinion, was not susceptible to judicial review.

The Court took the view that the same line of reasoning insulates the Chief Justice's decision from scrutiny.

As such it was decided that the Chief Justice not responding or acknowledging the complaint was not amenable to judicial review.   

"We are of the definite view that the decision of the Chief Justice in the instant case, to not provide a response to the complaint or to acknowledge the receipt of the complaint, is not justiciable and hence the writ petitions in question could not be maintained before this court, as rightly found by the learned single judge."

Therefore, finding no reason to interfere with the Single Judge's decision, the appeals were dismissed. 

Background:

Four waterfront apartment complexes in Maradu, Kochi were demolished on January 12 2020, following a Supreme Court order for not complying with Coastal Regulation Zone (CRZ) norms. The petitioner was one of the evictees.

Prior to such demolition, on a direction issued by the Government, the local authority had initiated proceedings against the builder to recall the building permit issued in respect of the apartment complex, alleging violation of the mandatory statutory provisions.

Soon, the petitioner filed representations alleging judicial misconduct against one of the sitting judges and two retired judges in the High Court in light of their orders in the Maradu flats demolition issue.

The case of the petitioner was that the judgment letting the builder, who has violated the law, scot-free does not conform to the Restatement of Values of Judicial Life adopted by the Apex Court since it does not reaffirm the faith of the people in the impartiality of the judiciary.

On that note, the petitioner preferred complaints before the Chief Justice of this Court and the CJI respectively, but no action was allegedly taken.

The petitioner thereby approached the Court seeking the constitution of an in-house committee to probe into the alleged judicial misconduct against the judges and to give him a copy of any reasoned order passed on his complaints.

One of the pleas urged that a direction be issued to the Chief Justice of the Court to comply with the In-House Procedure adopted by a full court meeting of the Supreme Court regarding a complaint filed against a sitting Judge.

The second plea sought a direction to the Chief Justice of India as well as the Chief Justice of the Court to comply with the In-House Procedure in light of a complaint filed against two retired Judges.

When the petition was instituted, the Registry had questioned its maintainability since it sought relief against the Chief Justice of the Court. This question was further entertained by the Bench.

The petitioner stood firm in his stand and argued that the Registry was not empowered to probe into a question of law and that by entertaining its question, the Court was legitimising the alleged improper conduct of the Registry.

Case Title: Mathew Z Pulikunnel v Chief Justice of India

Citation: 2022 LiveLaw (Ker) 135

Click Here To Read/Download The Order