A Grave Constitutional Impropriety by Andhra CM

Chief Minister of Andhra Pradesh’s letter to the Chief Justice of India undermines the creditability of the judiciary by an opportunistic hit and run attack which has implications for the independence of the judiciary, writes Senior Advocate INDIRA JAISING.

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The letter addressed by the Chief Minister of Andhra Pradesh, YS Jaganmohan Reddy, directly to the Chief Justice of India (CJI) raises issues of grave constitutional importance. Does such a direct approach interfere with the independence of the Judiciary from the Executive? A Chief Minister is writing not in his capacity as an ordinary citizen but as a Constitutional functionary.

In a Federal polity, propriety demands that the CM write to the Governor of the State who in turn will write to the President of India, the appointing authority of judges, who would then consider his options and communicate with the CJI, if necessary. Assuming for a moment that such a direct approach can be made, let us look at the contents of the letter and what purpose was sought to be achieved by writing the letter.

There are two distinct sets of allegations in the letter. One relates to alleged corruption by the daughters of a sitting judge who are said to have purchased land in the proposed capital of Andhra Pradesh on the basis of insider information. This allegation is the subject matter of an FIR lodged by Reddy’s government which is now pending the Supreme Court of India at the time of writing.

The other relates to unsubstantiated allegations that the concerned Judge was enabling that petitions challenging the decision of the Reddy Government were placed before judges who would decide against it in order to favour his rival in politics, the former Chief Minister, Nara Chandrababu Naidu. This is alleged to have been done in conspiracy with the Chief Justice of the High Court.

These allegations are substantially different from each other and if true require different remedies. Hence, the question arises what was the purpose of writing the letter to the CJI? Is it within the power of the CJI to take any action in either of the two cases?

The Supreme Court has put in place an in-house procedure by way of a full-court resolution on the administrative side to deal with such complaints if the complaint is found to be prima facie worthy of investigation. Some have argued that the purpose may be to request the CJI to refer the allegations to an in-house committee for an inquiry, though no such request is made in the letter.

Apart from questioning the very basis of judicial review, all the orders referred in support of the allegations are reasoned orders given on the merits of the case. The remedy is an appeal against the orders referred to in the letter.

Apart from the fact that no such request has been made, there is no way that an issue which is the subject matter of judicial proceedings or is sub-judice can be referred to an in-house committee. Hence, the purpose of the letter could not have been to place the first issue before the in-house committee

Gross Interference

There is no doubt that a direct approach to a CJI on the administrative side in relation to a pending matter on the judicial side is gross interference with the administration of justice.

Any ordinary citizen writing such a letter would attract contempt of court proceedings.

We then come to the other unsubstantiated allegations in the letter. Apart from questioning the very basis of judicial review, all the orders referred in support of the allegations are reasoned orders given on the merits of the case. The remedy is an appeal against the orders referred to in the letter.

Be that as it may, the allegations of interfering with the listing of matters before specific judges in conspiracy with the Chief Justice of that High Court, if true would constitute ‘misbehavior’ of a serious nature within the meaning of Article 124 and would warrant the removal of all the judges concerned.

Article 124 of the Constitution provides a procedure for removal from the office of a judge. Pursuant to Article 124, the parliament has enacted the Judges Inquiry Act of 1968.

The allegations of interfering with the listing of matters before specific judges in conspiracy with the Chief Justice of that High Court, if true would constitute ‘misbehavior’ of a serious nature within the meaning of Article 124 and would warrant the removal of all the judges concerned.

A motion for removal can be presented to the speaker of the House by 100 Lok Sabha MPs or by 50 Rajya Sabha MPs. Once the motion is admitted by the speaker, an inquiry is set up under the Judges Inquiry Act consisting of a sitting Supreme Court judge, a High Court judge, and a jurist to conduct the inquiry. The concerned judge is given an opportunity to be heard. If found guilty, the report goes back to the parliament for a vote on the motion of removal. The motion requires a majority of the members of the house and 2/3rd of the members present to vote in favour of removal.

The judges in question would have an opportunity to be heard in their own defense at every stage. If passed and presented to the President, the judge stands removed from the office.

Hit and Run Strategy

The Chief Minister whose own party has a substantial presence in Parliament, chose not to trigger the process of removal. Instead, he chose to have the letter released to the press. It is here that the hit and run strategy becomes clear. After all, the purpose of the letter has been achieved by its very publication. When a Chief Minister, who himself faces grave charges of corruption, puts such a letter in the public domain, he trivializes the issue of accountability of judges to his personal advantage, thereby eroding the rule of law.

The judiciary is weakened by the very act of publication when legal remedies are not accessed. When that happens, ‘We the People’ are the losers.

Misbehaviour by judges is too serious an issue to experiment with. It needs clear mechanisms of accountability to the general public. Such opportunistic attacks on the judiciary must be discouraged. On the other hand, effective remedies for judicial misbehaviour must be found, of which impeachment is one.

The judiciary is weakened by the very act of publication when legal remedies are not accessed. When that happens, ‘We the People’ are the losers.

We have a vested interest in an independent and impartial judiciary for that effective remedies for judicial misbehavior must be found. Only then, the rule of law will survive. It is nobody’s case that the judiciary is immune from the investigation into misbehavior and misconduct, the question is who has the power and the authority to investigate serious misconduct by a sitting judge.

It is not in dispute that all constitutional functionaries including the Prime Minister, Chief Ministers, and our Judges must act in the best interest of the institutions they head and not abuse the power conferred on them for malafide reasons. What the Chief Minister YS Jaganmohan Reddy seems to have done is to adopt a hit and run strategy to weaken the judiciary and cast doubts on its impartiality. If he was truly concerned about the independence of the Judiciary as he claims to be, he ought to have availed of the procedure prescribed by law to initiate impeachment proceedings under Article 124 with creditable evidence to support his allegations.

At the time of writing, we have no indication of what the Chief Justice of India intends to do with the letter. Inquiries made with the registry and the concerned Judge have yielded no result, hence we will have to wait and watch how the CJI intends to safeguard the creditability and impartiality of the Judiciary.

(Indira Jaising is Senior Advocate at Supreme Court of India and human rights activist.)

This article was first published in The Leaflet.