The procedure of the in-house probe in case of judicial misconduct

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On March 22, Chief Justice of India (CJI) Sanjiv Khanna constituted a three-member panel to probe the case of alleged cash recovery from the outhouse of the official residence of Delhi High Court, Judge Justice Yashwant Varma. The court-appointed three-member committee began its probe on Tuesday.

The procedure of the in-house probe 

The need for an internal mechanism for probing allegations against the judge of a High Court was felt in 1995 after certain allegations of financial impropriety against Justice A.M. Bhattacharjee, the then Chief Justice of Bombay High Court.

According to the 195th report of the Law Commission of India, the Supreme Court held, in a public interest litigation case, that an in-house “peer review” procedure can be laid down by the judiciary for correcting misbehaviour or deviant behaviour and where the allegations do not warrant removal of a Judge by address of the Houses, it is permissible for the in-house mechanism to impose “minor measures.

In 1997, the Supreme Court constituted a committee comprising three apex court judges and two senior most Chief Justices of High Courts to lay down the in-house procedure. The committee submitted its report on October 31, 1997. The recommendations were adopted with some amendments in a full court meeting of the Supreme Court of India on December 15, 1999.

In the afore-stated report, three sets of procedures were laid down. The first was related to Judges of the High Courts, the second to Chief Justices of the High Courts, and the third to Judges of the Supreme Court.

Steps in an in-house procedure

The in-house procedure has two stages. Initially, when a complaint is received against a judge of the High Court, it is the Chief Justice of that High Court who first verifies the veracity of allegations made. The report clearly states that if it is found by him that it is 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, he shall file the complaint and inform the CJI accordingly.

However, if it is found by him that the complaint is of a serious nature involving misconduct or impropriety, he shall ask for the response thereto of the Judge concerned. If on consideration of the allegations in the complaint in the light of the response of the Judge concerned, the Chief Justice of the High Court is satisfied that no further action is necessary he shall file the complaint and inform the CJI accordingly.

If the Chief Justice of the High Court is of the opinion that the allegations contained in the complaint need a deeper probe, he shall forward to the CJI the complaint and the response of the Judge concerned along with his comments.

After considering the complaint in the light of the response of the Judge concerned and the comments of the Chief Justice of the High Court, the CJI, if he is of the opinion that a deeper probe is required into the allegations contained in the complaint, shall constitute a three-member Committee consisting of two Chief Justices of High Courts other than the High Court to which the Judge belongs and one High Court Judge.

The said Committee shall hold an inquiry into the allegations contained in the complaint. The inquiry shall be in the nature of a fact-finding inquiry wherein the Judge concerned would be entitled to appear and have his say. However, it would not be a formal judicial inquiry involving the examination and cross-examination of witnesses and representation by lawyers.

After such inquiry, the Committee may conclude and report to the CJI that (a) there is no substance in the allegations contained in the complaint, or (b) there is sufficient substance in the allegations contained in the complaint and the misconduct disclosed is so serious that it calls for initiation of proceedings for removal of the Judge, or (c) there is substance in the allegations contained in the complaint but the misconduct disclosed is not of such a serious nature as to call for initiation of proceedings for removal of the Judge.

In a case where the Committee finds that there is no substance in the allegations contained in the complaint, the complaint shall be filed by the CJI.

If the Committee finds that there is substance in the allegations contained in the complaint and the misconduct disclosed in the allegations is such that it calls for initiation of proceedings for removal of the Judge, the CJI shall adopt the following course :-

(i) The judge concerned should be advised to resign his office or seek voluntary retirement;

(II) In case the Judge expresses his unwillingness to resign or seek voluntary retirement, the Chief Justice of the concerned High Court should be advised by the CJI not to allocate any judicial work to the Judge concerned and the President of India and the Prime Minister shall be intimated that this has been done because allegations against the Judge had been found by the Committee to be so serious as to warrant the initiation of proceedings for removal and the copy of the report of the Committee may be enclosed.

If the Committee finds that there is substance in the allegations but the misconduct disclosed is not serious enough to call for initiation of proceedings for removal of the Judge, the CJI shall call the Judge concerned and advise him accordingly and may also direct that the report of the Committee be placed on record.

The process laid down in the report was revisited in 2014 in the wake of sexual harassment against a sitting judge of the High Court by a woman additional district and sessions judge.

A seven-step probe process was laid down by Justices J S Khehar and Arun Mishra which is similar to the one process laid down in 1999.

Making the findings of the probe public

In the alleged sexual harassment case against former CJI Ranjan Gogoi, a statement issued by the Secretary General of the Supreme Court made it clear that as held in the Indira Jaising vs Registrar General, Supreme Court of India & Anr case, the “report of a committee constituted as part of the in-house procedure is not liable to be made public.

The above-mentioned judgment not only stated that the report of an in-house committee is not liable to be made public but also makes it clear that the “only source or authority by which the Chief Justice of India can exercise this power of inquiry (against a judge accused of any misconduct) is “moral or ethical and not in the exercise of powers under any law”.