Editorial 2 : The Veeraswami case: When can a sitting judge face an FIR?
Context
Vice President Jagdeep Dhankhar called for revisiting the SC’s K Veeraswami judgment, which he said has “erected a scaffolding of impunity” around the judiciary.
Protection for judges
- It is fundamental to the independence of the judiciary that judges should be able to decide cases without fear of personal consequences, including criminal prosecution.
- Disgruntled litigants, political actors, or the executive can file cases to harass or intimidate judges. Therefore, the Constitution has set a high bar for initiating action against them.
- The only procedure prescribed in the Constitution is the removal of a judge through impeachment. Under Article 124, impeachment is largely a political process, initiated by parliamentarians, which ensures due process for a judge.
Impeachment of judges
- In the 75 years since the SC and the Constitution came into being, not a single attempt at impeachment has been successful.
- Looking for alternative mechanisms to deal with complaints against judges, the SC developed the mechanism of the in-house inquiry, in which the Chief Justice of India (CJI) sets up a panel of judges to verify if there is a prima facie case against a judge.
- The CJI himself has limited powers to deal with errant judges beyond transferring or withdrawing work from the judge.
- Ultimately though, the finding of this panel, too, has to go to the executive for impeachment to be initiated.
- There has been a view that even initiating the process of impeachment has not been a sufficient deterrent. It is in this context that calls for criminal investigation against a sitting judge are made.
The Veeraswami case
- Justice K Veeraswami was the Chief Justice of the Madras High Court from May 1969 to April 1976.
- A biography by his colleague, Justice S Natarajan, noted that Justice Veeraswami, who was a very competent Judge who knew all branches of law had turned down his elevation to the SC.
- A couple of months before his retirement, Justice Veeraswami went on leave after allegations of corruption surfaced against him.
- It was alleged that the judge was in possession of pecuniary resources and property.
- Incidentally, Justice V Ramaswami, who would, in 1993, become the first judge to face impeachment proceedings in Parliament, was the son-in-law of Justice Veeraswami. Justice Ramaswami.
- The FIR against Justice Veeraswami raised larger constitutional questions on whether such a step could be initiated against a sitting judge. Justice Veeraswami moved the Madras High Court seeking the quashing of the FIR.
- In 1979, the Madras HC refused to quash the investigation in which Justice Veeraswami moved the SC in appeal, which finally decided the matter in 1991.
The SC verdict
- The SC had to decide whether a judge of a High Court or of the SC is a “public servant” for the purpose of the Prevention of Corruption Act, 1947.
- The government argued that, unlike the President and Governors, there is no immunity for judges of the higher judiciary under the Constitution.
- The SC held that while a judge can be considered a public servant for a corruption case to be registered against him, the sanction must come from the CJI.
- Ordinarily, sanction is granted by the authority that has the power to appoint the public servant.
- But the SC emphasised that there is no master and servant relationship or employer and employee relationship between a Judge and the President of India in whom the executive power of the Union is vested under the provisions of Article 53 of the Constitution.
- The inclusion of the CJI, therefore, ring-fenced the prosecution of judges against executive interference.
Conclusion
- The K Veeraswami judgment represents a delicate balancing act between judicial independence and judicial accountability. By requiring the Chief Justice of India's sanction before initiating criminal proceedings against sitting judges, the Supreme Court sought to shield the judiciary from politically motivated or frivolous prosecutions while still acknowledging the need for legal scrutiny in genuine cases of misconduct.
- However, as Vice President Jagdeep Dhankhar rightly pointed out, this framework may have inadvertently created a perception of impunity by limiting external checks on judicial wrongdoing.