Explained | Can FIR Be Registered Against A Sitting Judge? What Is In-House Enquiry Procedure On Complaint Against Judge?

Reports regarding the alleged recovery of unaccounted money from the residence of Justice Yashwant Verma of the Delhi High Court have sent shock waves across the legal fraternity.

While it is understood that the Supreme Court Collegium is considering a proposal to transfer Justice Verma and that the Delhi HC CJ is enquiring into the matter,  several concerns are being raised, quite rightly, by the general public.

If a Judge is found to be in alleged possession of unaccounted cash, should not an FIR be first lodged on this issue and a criminal investigation be commenced?  

However, the simple answer is that at the first instance, no criminal proceedings can be initiated against a sitting Judge unless the Chief Justice of India (CJI) is consulted, as held by the Supreme Court in its judgment in K. Veeraswami v. Union of India (1991).

Once the Chief Justice of India is satisfied that the allegations are prima facie credible, the CJI has to advise the President of India to allow the police to register an FIR. 

"In order to adequately protect a Judge from frivolous prosecution and unnecessary harassment the President will consult the Chief Justice of India who will consider all the materials placed before him and tender his advice to the President for giving sanction to launch prosecution or for filing FIR against the Judge concerned after being satisfied in the matter."

Over the years, this process has come to be known as the 'In-House Procedure,' which is a confidential enquiry for institutional credibility under the charge of the CJI.

The In-House Procedure was first stated in the 1991 judgment where the allegations were against a former Chief Justice of the High Court under the Prevention of Corruption Act, 1947 (PC Act).

When the matter reached the Supreme Court, two important issues emerged: Are judges public servants under the PC Act? If they are, then a prior sanction is necessary to launch criminal prosecution against them.

The second question was, who would be the competent authority to give that sanction?

Judges are 'public servants' as per PC Act

The Veeraswami judgment holds that a judge of a High Court or a Supreme Court, including the Chief Justice of either Court, is a 'public servant' under the PC Act. Therefore, a criminal prosecution or FIR can be lodged against the judge for offences under the PC Act.

Sanction is not necessary if the judge no longer holds the office.

Who can remove a judge?

The judgment says the President of India is the competent authority to grant sanction under the PC Act to initiate a criminal prosecution against a sitting judge. 

"The President, therefore, being the authority competent to appoint and to remove a Judge, of course in accordance with the procedure envisaged in Article 124, clauses (4) and (5) of the Constitution, may be deemed to be the authority to grant sanction for prosecution of a Judge under the provisions of Section 6(1)(c) in re- spect of the offences provided in section 5(1)(e) of the Prevention of Corruption Act, 1947."

However, no FIR can be lodged against a judge unless the CJI is "consulted". The judgment reasons that in-house procedure protects a judge from "frivolous prosecution and unnecessary harassment". 

"The President shall act in accordance with advice given by the Chief Justice of India."

Is the advice of CJI binding?

The judgment says when the President consults the CJI, the latter has to consider all the "materials" to tender the advice. If the CJI thinks that it is not a fit case for grant of sanction, the President 'shall' not accord sanction.

The judgment observes: 

"If the chief Justices of opinion that it is not a fit case for grant of sanction for prosecution of the Judge concerned the President shall not accord sanction to prosecute the Judge; This will save the Judge concerned from unnecessary harassment as well as from frivolous prosecution against him.

 Similarly in the case of Chief Justice of the Supreme Court the President shall consult such of the Judges of the Supreme Court as he may deem fit and proper and the President shall act in accordance with the advice given to him by the Judge or Judges of the Supreme Court. The purpose of grant of previous sanction before prosecuting a public servant i.e. a Judge of the High Court or of the Supreme Court is to protect the Judge from unnecessary harassment and frivolous prosecution more particularly to save the Judge from the biased prosecution for giving judgment in a case which goes against the Government or its officers though' based on good reasons and rule of law."

What is the 'In-House Enquiry' procedure?

In the 1995 judgment of Ravichandran Iyer v. Justice A.M. Bhattacharjee, the Supreme Court termed it an "In-House Procedure". It was stated that impeachment is a "drastic: remedy and needs to be only used in serious cases. Therefore, the Court suggested an alternative procedure when a judge of the High Court is involved. 

1. The Chief Justice of the High Court, after confidential enquiry from independent sources, should ascertain if the complaint raises serious allegations of misconduct or impropriety. The CJ must also ask for a response from the judge concerned.

It should be noted here that as per the 2015 judgment, it is not open for the Chief Justice of the High Court to further constitute any committee to hold an enquiry by recording statements etc. His only determination is, whether a prima facie case is made out requiring a deeper probe. 

2. In light of the response received, if the Chief Justice of the High Court thinks the matter requires further action, he should then consult the CJI and place all relevant information before him.

Meanwhile, all other procedures of enquiry against the judge should be suspended.

3. The CJI, on receipt of the information from the Chief Justice of the High Court, the CJI must ask for comments from the Chief Justice of the High Court and a response from the concerned judge through the Chief Justice of the High Court.

It is at this stage before the CJI, that the veracity of the allegations are to be probed.

4. If the CJI is of the opinion that the matter requires further investigation, he shall constitute a three-member Committee consisting of two Chief Justices of the High Courts other than the High Court to which the judge belongs and one High Court judge. 

5. The said Committee shall hold an enquiry into the allegation and submit a report to the CJI. The Committee must devise its own procedure but should follow principles of natural justice. A copy of the report has to be sent to the judge concerned. 

Where the CJ of the High Court is involved, the Bar must directly bring the matter to the notice of the CJI.

When the enquiry report recommends the removal of the judge 

The CJI shall:

1. ask the judge to resign or seek voluntary retirement; 

2. If the judge refuses to resign or seek voluntary retirement, the CJI must advise the Chief Justice of the High Court to not allot any judicial work to him. The same shall be put to the notice of the President and the Prime Minister. 

In the case of Justice Soumitra Sen, the then-sitting judge of Calcutta High Court, he was advised to resign after an In-House Procedure was followed. Since he showed his unwillingness to resign, the then CJI K.G. Balakrishnan wrote it to Prime Minister Manmohan Singh to initiate impeachment proceedings. 

When the committee finds substance in allegation but misconduct not serious 

In case the Committee finds that there is misconduct but not serious in nature, it shall call the judge and advise him accordingly.

If the allegation is against a Judge of the Supreme Court:

1. If a complaint is against a judge of the Supreme Court, the CJI must first examine it. 

2. If CJI finds the complaint serious in nature, he shall ask for a response of the judge. 

3. Based on the response and in light of the allegations, if the matter requires a deeper probe, CJI would constitute a Committee of three-judges of the Supreme Court. 

4. The committee shall hold enquiry and similar action can be followed as followed in case a complaint is against a judge of the High Court.

There is no specific procedure where the allegation against the CJI is made. However, the pronouncements note that the President will have to consult other judges of the Supreme Court.

Transparency of in-house procedure 

In Indira Jaising v. Registrar General, Supreme Court, Senior Advocate Indira Jaising had filed an Article 32 writ seeking public disclosure of the enquiry report made by a Committee constituted by the CJI of two judges of the Supreme Court and a judge of the High Court to enquire into the allegations of sexual harassment against the then sitting judge of Karnataka High Court. 

Dismissing the petition, the Court had said: "A report made on such inquiry if given publicity will only lead to more harm than good to the institution as Judges would prefer to face inquiry leading to impeachment. In such a case the only course open to the parties concerned if they have material is to invoke the provisions of Article 124 or Article 217 of the Constitution, as the case may be. It is not appropriate for the petitioner to approach this Court for the relief or direction for release of the Report, for what the Chief Justice of India has done is only to get information from peer Judges of those who are accused and the report made to the Chief Justice of India is wholly confidential."

The said report is only for the purpose of the satisfaction of the CJI that such a report has been made. It is purely preliminary in nature, ad hoc and not final, it had observed. Jaisingh had remarked that the decision to not make the inquiry report public is a "scandal".

Subsequently, the 2015 judgment the Registry of the Supreme Court was directed to upload the procedure on its official website.

Conclusion

While the In-House procedure allows the CJI to make informed decisions, the lack of any written guidelines or mechanism to make the inquiry report public continues to attract scepticism. A fair and transparent procedure would restore the tarnished faith of the judiciary caused by such unfortunate incidents.