On April 24, 2021, Justice N. V. Ramana is to assume office as the 48th Chief Justice of India (CJI). As Master of the Roster, Justice Ramana would have the sole prerogative to constitute benches of the Supreme Court and allocate matters to be heard by these benches. As a matter of law, he would exercise this power even in cases that concern allegations made against him. The importance of the integrity of the person occupying such an important constitutional position cannot be overstated. Yet, a month before Justice Ramana is to assume office, the public is in the dark about the veracity of serious allegations levelled against him by other constitutional authorities.
The allegations
On October 6, 2020, Andhra Pradesh Chief Minister Y.S. Jagan Mohan Reddy addressed a letter to CJI S.A. Bobde alleging that Justice Ramana was interfering with the constitution of benches and assignment of matters at the Andhra Pradesh High Court in order to ensure that cases concerning the opposition party in the State were assigned to favourable benches. There were also specific allegations against certain judges of the Andhra Pradesh High Court, including the then Chief Justice of the High Court, Justice J. K. Maheshwari.
Mr. Reddy, who faces several allegations of corruption and criminal cases, does not present as a particularly credible complainant. The Attorney General lost no opportunity in alluding to these controversies in his communication declining a request to initiate criminal contempt proceedings against the Chief Minister for his allegations. Consent was declined on the grounds that the CJI was “seized of the matter”. However, the Attorney General thought it fit to observe that Mr. Reddy’s conduct was prima facie “contumacious” and noted that the timing of the allegation “could be said to be suspect” as Justice Ramana had presided over a bench that had recently passed an order directing various High Courts to expeditiously adjudicate thousands of criminal cases that were pending against former and sitting legislators. The order had galvanised the Telangana High Court to direct a CBI special court to hear a disproportionate assets case against Mr. Reddy.
It would, however, be improper to dismiss the accusations of a sitting Chief Minister against the future CJI as the insinuations of a disgruntled litigant. Given the high constitutional offices embroiled in the controversy, the allegations at a minimum deserve a thorough, expeditious and transparent inquiry. The Supreme Court, though, has turned institutional inscrutability into high art. On December 14, 2020, the Supreme Court collegium that included Justice Ramana recommended the transfer of Chief Justice Maheshwari from the Andhra Pradesh High Court to the Sikkim High Court. The collegium’s tendency to resort to transfers in order to avoid the uncomfortable exercise of inquiring into allegations of alleged judicial misconduct is so common that one would be forgiven for mistaking it for a constitutional prescription. There is no information as to the reasons for the transfer of Justice Maheshwari to a much smaller High Court in the wake of Mr. Reddy’s allegations.
The in-house procedure
This episode serves as a reminder of the inadequate, self-fashioned rules that govern inquiries into judicial misconduct. The ‘in-house’ procedure devised by the higher judiciary in 1997 is riddled with shortcomings, including its absolute insulation from external gaze, its lack of prescriptions as to timelines for completion of the inquiry, and the absence of any requirement to disclose the pendency or results of the inquiry (including to the complainant). The procedure confers wide discretionary powers on the CJI. Interestingly, it also does not contemplate a situation in which allegations may be leveled against the CJI. Sheltered by this in-house procedure, the Supreme Court has avoided having to officially respond to the allegations against Justice Ramana, or share information regarding the existence or status of an inquiry into them. Given Justice Maheshwari’s hasty transfer, and the fact that there is just a month before Justice Ramana is to assume office, the irresistible conclusion is that the court would rather not apply its judicial mind to this task.
There is legitimate reason for concern that the allegations may receive a quiet burial. In August 2017, Justice Chelameswar (then a senior Supreme Court judge) had addressed a letter to the then CJI Khehar regarding an “unwarranted intimacy” between Justice Ramana and the then Chief Minister of Andhra Pradesh, Chandrababu Naidu. The concern was that Justice Ramana and Mr. Naidu had rejected certain candidates for elevation to the Andhra Pradesh High Court on identical (but specious) grounds. Despite a senior judge voicing concerns regarding a colleague on the bench, there was no information about the initiation of an inquiry, let alone its result.
Two possible outcomes
There are two possible conclusions to an inquiry into Mr. Reddy’s letter: that he has falsely accused several members of the higher judiciary, including the second-most senior judge of the Supreme Court, of misconduct; or that the future CJI and other High Court judges have abused their positions. Either outcome requires firm institutional responses. Should Mr. Reddy’s allegations prove to be baseless, his letter would constitute an attempt to use his constitutional office to interfere in the administration of justice and he ought to face criminal contempt proceedings.
Should the allegations against Justice Ramana and other senior members of the higher judiciary be found to be credible, the in-house procedure requires that the CJI evaluate whether the misconduct warrants the removal of the judge from office or not. In the former event, the judge(s) may be asked to resign. Only in the event of a judge refusing to resign would steps be taken to withdraw judicial work and communicate the finding of misconduct to other constitutional functionaries (the Prime Minister and President) for appropriate action (and a possible impeachment). If the CJI considers that the misconduct does not warrant the removal of the judge, the CJI may “...advise [the judge] accordingly”, and the report of the committee that conducted the inquiry may be “placed on record.” It is unclear what “placed on record” means. But what is certain is that this report is not available to the public.
Indian citizens, as a matter of right, ought to be informed of the outcome of such an inquiry given the institutions and authorities involved, well before Justice Ramana takes office as CJI. Yet, the Supreme Court – that repeatedly proclaims its commitment to preserving public trust in the judiciary – appears to be moving at a glacial pace in response to Mr. Reddy’s letter, and also deems it unnecessary for the public to be informed of the status or outcome of an inquiry. The Bar stands implicated in the omerta over allegations of judicial misconduct, not just for its muteness in respect of the inquiry into the Chief Minister’s allegations, but its historic failure to demand transparency from the higher judiciary. The mantle falls upon the public to declare to constitutional authorities that citizens of democracies deserve better than a self-serving, non-transparent in-house procedure that is founded on the presumption that the CJI is above suspicion.
Arti Raghavan is an advocate practising at the Bombay High Court