K. VEERASWAMI v. UNION OF INDIA AND OTHERS

Citation: [1991] 3 S.C.R. 189

Court: Supreme Court of India

Bench: B.C. RAY, K. JAGANNATHA SHETTY, L.M. SHARMA, M.N. VENKATACHALIAH, J.S. VERMA

Case summary

As impeachment of political offenders might involve not only deprivation of office but other penalties, the royal prerogative of pardon does not extend to preventing impeachment but extends to pardoning punishments inflicted on an impeachment....

Judgment text

The Judgment of the Court was delivered by RAY, J. I have had the advantage of deciphering the two draft judgments prepared by my learned brothers Shetty and Verma, JJ. I agree with the conclusions arrived at by my learned brother Shetty, J. Yet considering the great importance of the questions involved in this matter, I deem it just and proper to consider the same and to express my own views. Three very important q "" ported by amajority of the total membership of that House and by a majority of not less then two-thirds of the members of that House present and voting, has been presented to the President in the same session for such removal on the ground of proved misbehaviour or incapacity. Thus, if the power of the President, who has to act on the advice of the Council of Ministers, to transfer a High Court Judge for reasons not bearing on public interest but arising out of whim, caprice or fancy of the executive or its desire to bend a Judge to its own way of thinking, !

here is no possibility of any interference with the independence of the judiciary if a Judge is transferred without his consent. The same view about the independence of the judiciary from the con- trol of the executive has been spelt out by the observations of the Constitution Bench of Seven Judges in the case of S. P. Gupta & Ors. v. President oflndia and Ors.. AIR 1982 (SC) 149. "The concept of independence of judiciary is a noble concept which inspires the Constitutional Scheme and constitute the foundation on which rests the edifice of our democratic polity. If there is 'one principle which runs through the entire fabric of the Constitution, it is the principle of the rule of law and under the Constitution, it is the judiciary which is entrusted with the task of keeping every organ of the State within the limits of the law and thereby making the rule of law meaningful and effective.

It is to aid the judiciary in this task that the power of judicial review has been conferred upon the judiciary and it is by exercising this power which constitutes one of the most potent weapons in armoury of the law, that the judiciary seeks to protect the citizen against violation of his constitutional or legal rights or misuse of abuse of power by the State or its officers. The judiciary stands between the citizen and the State as a bulwark against executive excesses and misuse or abuse or power by the executive and there it . • is absolutely essential that the judiciary must be free from executive pressure or influence and this has been secured by the Constitution makers by making elaborate provisions in the Constitution to which detailed reference has been made in the judgments in Sankalchand Sheth's case (AIR I977 SC 2326) (supra).

But it is necessary to remind ourselves that the concept of independence of the judiciary is not limited only to independence from executive pressure or influence but it is a much wider concept which takes within its sweep independence from many other pressures and prejudices. It has many dimensions, namely fearlessness of other power centres, economic or political, and freedom from prejudices acquired and nourished by the class of which the Judges belong. If we may again quote the eloquent words of Justice Krishna Iyer: "Independence of the judiciary is not genuflexion; nor is it opposition to every proposition of Government. It is neither judiciary made to opposition measure nor Government's pleasure. K. VEERASWAMI v. U. 0. 1. [RAY, l. J 221 The tyc ity to obtain prior sanction from the competent authority for prosecution of the appellant as required under Section 6 of the Act.

And since there was no such sanction obtained the Court has no jurisdiction to take cognizance of the case. Mr. Justice Mohan, with whom Mr. Justice Natarajan, (as he then was) joined rejected all the contentions in a well considered judgment. The views expressed by Mohan, J. , on all the issues except on the last one need not be set out here since all those issues have not been raised before us. On the last aspect relating to the requirement of prior sanction for prosecution of the appellant, the learned Judge, held that since the appellant has retired from service and was no longer a 'public servant' on the date of filing the charge sheet, the sanction for his prosecution required under Section 6 of the Act is not warranted. The third Judge Mr. Justice Balasubramanyan in a separate judgment has collcurred with the majority views on most of the questions. He has ,however, differed on three points out of which one alone need be mentioned.

The other two have not been supported before us by counsel for the appellant. The learned Judge has dealt with the ingredients of the offence under clause (e) of Section 5(1) with which the appellant was charged. While analysing ingredients of the offence, he went on to state that the gist of the offence is not the possession of assets merely. Nor even the sheer excess of assets over income, but the inability ef the public servant in not being able to satisfactorily account for the excess. He observed that clause (e) of Section 5(1) of the Act places the burden of establishing unsatisfactory accounting squarely on the prosecution. In order to properly discharge this burden cast by the ' section, it would be necessary for the Investigating Officer first of all to call upon the public servant to account for the disproportionate assets. He must then proceed to record his own finding on the explanation of the public servant. He must state whether it is satisfactory or not.

And the offence complained of under clause (e) of Section 5(1) is not made out without such exercise and finding by the Investigating Officer. The learned Judge, however, was careful enough to modulate his reasoning so that it may be in conformity with the constitutional protection guaranteed to the accused under Article 20(3) of the Constitution. Article 20(3) provides that no person accused of any offence shall be compelled to be a witness against himself. The learned Judge said that in view of Article 20(3) the Investigating Officer has no power to compel the accused to give his explanation for his disproportionate assets, but he must necessarily ask the public servant for an account. 232 SUPREME COURT REP'ORTS [1991] 3 S. C. R. In this case. the accused-appellant has voluntarily submitted his statement of assets and income to the Investigating Officer in the course of investigation. Balasubramanyan. J.

, however, seems to have ignored that ~tatcment and focussed his attention on the default of the Investigating Officer in not calling ~pon the appellant to account for the disproportionate assets. In that view. he held that the chargeshcet could not be sustained and accordingly quashed the prosecution. Before us, counsel for the appellant advanced only twG> propositiGns. The first concerns with the ingredients of the offence alleged and the requirements of the charge-sheet filed against the appellant. It also involves the duties of the Investigating Officer. Jn this regard counsel sought to support the views expressed by Balasubramanyan, J. , in his dissenting judgment. ,The second proposition relates to the inapplicability of the Act to Judges of the High Courts and Supreme Court. The essence of the submissions made on this aspect is based on the special status and role of Judges of the higher judiciary and in the need to safeguard judicial inc! epend.

;nce consistent with the constitutional prov1S1ons. We will take up the second question fast for consideration _. ,because, if it is determined in favour of the appellant, the first becomes academic and \Ve rr1ay conveniently leave it out. For a proper consideration of the submissions made by counsel on both sides the attention may be drawn to the relevant provisions of the Act. Section 2 provides: - ' "2. For th. e purposes of this Act, "public servant" means a public servant as defined in Section 21 of the Indian Penal Code. " Section 4 provides: 4.

[( l)] Where in any trial of an offence punishable under section 16 J or section 165 of the Indian Penal Code (or of an offence referred to in clause (a) or clause (b) of subsection (I) of section 5 of this Act punishable under subsection (2) thereof), it is proved that an accused person has accepted or obtained, or has agreed to accept or attempted to obtain, for himself or for any other person, any gratification (other than legal remuneration) or any valuable thing from any person, it shall be presumed unless the contrary is K. VEERASWAMJ v. U. 0. 1. [SHETIY, J. l 233 proved that he accepted or obtained, or agreed to accept or attempted to obtain, that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in the said section 161, or, as the case may be, without consideration or for . a consideration which he knows to be inadequate. (2) Where.

in any trial of an offence punishable under section 165A of the Indian Penal Co tionship of master and servant between them and the Government and clause {c) of Section 6(1) is inapplicable to them. It is true that the relationship of master and servant as is ordinarily understood in common law does not exist between the Judges of higher judiciary and the Government. Where there is relationship of master and servant the master would be in commanding position. He has power over the employee not only to direct what work the servant is to do, but also the manner in which the work is to be done. The "" servant undertakes to serve the master and obey the reasonable orders within the scope of his duty. It is implicit in such relationship that the servant may disobey the master's order only at his peril. But there is no snch relationship between the Judges and their appointing authority that is, the Government.

The Judges are not bound nor do they undertake to obey any order of the Government within the scope of their duties. Indeed, they are not Judges if they allow themselves to be guided by the Government in the performance of their duties. In Union of India v. S. H. Sheth, (1978] 1 SCR 423 at 450 Chandrachud, ~ J. , as he then was, has illumined this idea: "the Judges owe their appointment to the Constitution and hold a position of privilege under it. They are required to 'uphold the Constitution and the laws', 'without fear' that is without fear of the Executive; and 'without favour' that is without expecting a favour from the Executive. There is thus a fundamental distinction between the master and servant relationship between the Government and the Judges of High Courts and the ~ ~ Supreme Court. " But we cannot accept the contention urged for the appellant that clause (c) should be read in "ejusdem generis" to clauses (a) and {b) of Section 6(1) of the Act.

The application of the ejusdem generis rule is only to general word following words which are less general, or the general word following particular and specific words of the same nature. In such a case, the general word or expression is to be read as comprehending only things of the same kind as that designated by the preceding specific words or expressions. The ·general word is presumed to be restricted to the same genus as those of r----C the particular and specific words. (See Maxwell on The Interpretation of Statutes, 12th Ed. p. 297). What do we have here? Section 21 of the ! PC while defining "public servant" has denoted as many as twelve categories of persons. It includes not only the State and Central Government employees but also others like Judge, juryman, assessor , and arbitrator. It also includes every person in the service or pay of the Government or remunerated by fees or commission by the Government.

Each category is different from other and there is hardly any relationship of master and servant in some of the categories. fThe provisions of clauses (a) and (b) of Section 6(1) of the Act covers certain categories of public servants and the 'other' which means remaining categories are brought within the scope of clause (c). fClause (c) is independent of and separate from the preceding two clauses. The structure of the section does not permit the applicability of the rule of ejusdem generis. There are, however, two requirements for the applicability of clause (c) of Section 6(1) to a Judge of the higher judiciary. First, the Judge must be a public servant. Second, there must be an authority competent to remove the Judge from his office. If these two require- .. ments are complied with, a Judge cannot escape from the operation of the Act. On the first requirement there is little doubt and also not seriously disputed by counsel for the appellant.

His approach however, is to limit the operation of clause (c) only to Judges of the Subordinate judiciary. But we do not find any sustainance in that approach. From the very commencement of the IPC "Every Judge" finds a place in the categories of "public servant" defined under Section 21 of ! PC. It was· specifically denoted in the third category of public servant under Section 21 of ! PC. In 1962, the Government of India constituted a Committee chaired by C. K. Santhanam, MP to suggest improvements in the provisions of the Act. Nine specific terms of references were made to the Committee. The Fourth term of reference made to the Committee reads: "to suggest changes in law which would ensure speedy trial of cases of bribery, corruption and criminal misconduct, and make the law otherwise more effective. " The Committee collected a lot of material from the public relating to the nature of corruption in the administration.

It was represented to the Committee by the public that corruption has increased to such an extent that people have started losing faith in the integrity of public administration. "We heard from all sides", the Committee reported, "that corruption has, in recent years, spread even to those levels of administration from which it was cons, picuously absent in the past. " (See: Santhanam Committee Report, paras 2. 12,2. 15 and 2. 16). The Committee submitted its report on 31st March 1964. While examining the Fourth term of reference extracted above, the Committee in Section 7 of its report considered the question of amendments to the IPC. The Committee drew particular K. VEERASWAMI v. U. 0. I. [SHETTY, J. J 241 attention to the definition of 'public servant' in Section 21 of the IPC. Under paragraph 7. 6 of the Report, the Committee has suggested that the present definition of 'public servant' under Section 21 of the IPC requires to be enlarged.

It has stated, among others that 'a further category should be added to include all persons discharging adjudicatory functions under any Union or State Law for the time being in force. ' Under para 7. 7, the Committee recommended that the third category under Section 21 of the ! PC may be amended as stated below: "Third-Every Judge including any person entrusted with adjudicatory functions in the course of enforcement of any law for the time being in force. " This recommendation led to the enactment of Anti Corruption Laws (Amendment) Act 1964 (Act No. 40 of 1964), The Parliament by passing this enactment has reenacted Section 21 with the third category as follows: "21. 'public servant'-The words "public servant' denote a person falling under any of the descriptions hereinafter following, namely; ". Third-Every Judge including any person empowered by law to discharge, whether by himself or as a member of any body of persons, any adjudicatory functions.

" It will be seen that the Parliament has not only retained the expression "Every Judge" in the original enumeration of public servant under Section 21 of the ! PC but also enlarged the expression to include any person empowered by law to discharge any adjudicatory functions. Reference may also be made to Section 19 of the ! PC, in which "Judge" is defined. Section 19 reads: "19. "Judge"-The word "Judge" denotes not only every person who is officially designated as a Judge, but also every person who is empowered by law to give, in any legal proceeding, civil or criminal, a definitive _judgment, or a judgment which, if not appealed against, would be definitive, or a judgment which, if confirmed by some other authority, would be definitive, or who is one of a bodx of persons, which body of persons is empowered by law to give such a judgment. " The expression "Every Judge" used in the third category of Section 21 indicates all Judges and all Judges of all Courts.

It is a general term and general term in the Act should not be narrowly construed. It must receive comprehensive meaning unless there is positive indication to the contrary. There is no such indication to the contrary in the Act. A Judge of the superior Court cannot therefore be excluded from the definition of public servant. He squarely falls within the purview of the Act provided the second requirement under clause (c) of Section 6( 1) is satisfied. The second requirement for attracting the provisions of clause (c) of Section 6(1) to a Judge of the superior Judiciary is that for the purpose of granting sanction for his prosecution, there must be an authority and the authority must be competent to remove the Judge. It is now necessary to identify such authority in relation to the higher judiciary. In our country, the Judges of higher Judiciary are safe and secure. They are high dignitaries and constitutional functionaries.

They are appointed by the President in the exercise of his executive power but they are independent of the Executive. They hold office till they attain the age of superannuation. The High Court Judge retires at 62, whiie the Supreme Court Judge retires at 65. They are liable to be removed for proved misbehaviour or incapacity. The Executive is competent to appoint the Judges but not empowered to remove them. The power to remove them is vested in Parliament by the process analogous to impeachment. The power is located under Article 124 of the Constitution. Article 124 provides, so far as material, as follows: "124.

Establishment and constitution of Supreme Court- xxxxx xxxxx xxxxx (4) A Judge of the Supreme Court shall not be removed from his office except by an order of the President passed after an address by each House of Parliament supported by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present and voting has been presented to the President in the same session for such removal on the ground of proved misbehaviour or incapacity. K. VEERASWAMI v. U. 0. I. [SHEITY, J. ] 243 (5) Parliament may by law regulate the procedure for the presentation of an address and for the investigation and proof of the misbehaviour or incapacity of a Judge under ... ~ clause (4). Article 218 provides that the provisions of clauses (4) and (5) of Article 124 shall apply in relation to a High Court as they apply in relation to the Supreme Court.

Jn exercise of the power vested under clause (5) of Article 124, the Parliament has passed the Judges (Inquiry) Act, 1968 prescribing _, the procedure for presentation of an address and for the investigation and proof of misbehaviour or incapacity of a Judge. It will be useful to refer to the relevant provisions of the Judges (Inquiry) Act, 1968. Section 3( 1) provides for giving notice of a motion for presenting an address to the President praying for the removal of a Judge, (a) in the case of a notice of motion given in the House of the People, it should be signed by not less than one hundred members of that House; (b) in the case of a notice given in the Council of States, it should be signed by not less than fifty members of that Council. The notice of motion . _.

; should be given to the Speaker or, as the case may be, to the Chairman who may, after consulting such persons, as he thinks fit and after considering such materials, if any, as may be available to him, either admit the motion or refuse to admit the same. Section 3(2) states that if the motion referred to in sub-section (1) is admitted, the Speaker or, as the case may be, the Chairman shall constitute a Committee for making an investigation into the grounds on which the removal of a Judge is prayed for. There shall be three members of the Committee; of whom one shall be chosen from among the Chief Justice and other Judges of the Supreme Court; one shall be chosen from among the Chief Justices of the High Courts and one shall be a person who is, in the opinion of the Speaker or, as the case may be, the Chairman, a distinguished jurist.

The section further provides that the Committee shall frame definite charges against the Judge on the basis of which the investigation is proposed to be held and the Judge shall be given a reasonable opportunity of presenting a written statement of defence. There are Rules called the Judges (Inquiry) Rules, 1969 formed under . --. -; the Judges (Enquiry) Act prescribing procedure for holding an inquiry against the Judge. Section 4( 1) of the Judges (Inquiry) Act, 1968 states that at the conclusion of the investigation, the Committee shall submit its report to the Speaker or, as the case may be, to the Chairman, stating therein its findings on each of the charges separately with such observations on the whole case as he thinks fit. The Speaker or the Chairman, as the case may be, shall cause that report to be laid before •• the House of People and the Council of States.

Section 6 provides that if the report of Committee contains a finding that the Judge is not guilty of any misbehaviour or does not suffer from any incapacity, then, no further step be taken in either House of Parliament. Section 6(2) states that if the report of the Committee contains a finding that the Judge is guilty of any misbehaviour or suffers from any incapacity, then, each House of Parliament shall take further steps. The motion to. present an address to the President together with the report of the Committee, shall be taken up for consideration by the • House in which it is pending. That address praying for removal of the Judge must be adopted by each House of Parliament in accordance with the provisions of clause (4) of Article 124.

Clause (4) of Article 124 provides that the address must be passed by each House of Parliament supported by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present and voting. Thereafter it shall be presented to the President for removal of the Judge. Incidentally, it may be mentioned . ' that the same procedure has been made applicable for removal of the Comptroller and Auditor-General of India. (See clause (1) of Article 148 and for removal of the Chief Election Commissioner. (See clause (5) of Article 324 of the Constitution. Counsel for the appellant while referring to the aforementioned provisions of the Constitution pointed out that the power to remove a Judge is not vested in any single individual or authority. No single person or authority is competent to tak. e e. ven cognizance of any allegation of misconduct of a Judge, or to take legal action for his removal.

The power to remove a Judge is vested in the two Houses of Parliament and the President. The process and power are both integrated in Parliament and Parliament alone is competent to remove a Judge. But Parliament, counsel contended, cannot be the sanctionring authority for the prosecution of a Judge. /The grant of sanction JO"' req mres consideration of material collected by the investigating agency and Parliament cannot properly consider the material. Parliament is wholly unsuitable to that work. III would be reasonable to presume that the Legislature while enacting clause (c) of Section 6(1) of the Act could not have intended Parliament to be the sanctioning authority. The other authority cannot be involved to grant sanction for prosecution of a Judge since it would be inconsistent with the provisions of the Act and the Constitutional requirements. Counsel asserted that it is necessary to exclude the Judges of the Supreme Court and of K. VEERASWAMI v. U. 0. I. [SHEITY, J.

j 245 the High Courts from the operation of the Act. Mr. Tulsi, learned Additional Solicitor General, on the other hand, emphasised on the role of the President ii) relation to removal of a Judge. He pointed out that the order of the President for removal of a Judge is imperative under clause (4) of Article 124 of the Constitution and the President could be the proper authority under clause (c) of Section~U) of the Act. " Such, then, put qui(e shortly, were the contentions addressed to us on the autho1:ty competent to grant sanction for prosecution. of J4dges of the superior judiciary. · We agree with counsel for the appellant that Parliament could not l)ave been intended to be the sanctioning authority under clause (c) of Section 6(1). The cqmposition of Parliament coosisting of the president and two Houses (Article 79) makes it unsuitable to the task; The nature of transacting business or proceeding in each House renders it impracticable.

The individual Member of the House takes part in a proceeding usually by speech and voting; but the conduct of Judge in the discharge of his duties cannot be discussed. Article 121 provides "that no discussion shall take place in Parliament with respect to the conduct of any Judge of the Supreme Court or of a High Court in the discharge of his duties except upon a motion for presenting an address to the President prayh1g for the removal of the Judge as hereinafter provided. " The 0 nly exception made in the Constitution for discussion on the conduct of a Jl! dge is when the motion is titl of proof is always on the prosecution and never shifts to the accused person. But Parliament is competent to place the burden on certain aspects on the accused as .... well and particularly in matters "specially within his knowledge". (Section 106 of the Evidence Act).

Adroitly, as observed in Swamy case (at 469) and reiterated in Wasudeo case (at 683), the prosecution cannot, in the very nature of things, be expected to know the affairs. of a public servant found in possession of resources of property disproportionate to his known sources of income. It is for him to explain. Such a statute placing burden on the accused cannot be regarded as unreasonable, unjust or unfair. Nor it can be regarded as contrary to Article 21 of the Constitution as contended for the appellant. It may be noted that the principle re-affirmed in Woolmington case is not a universal rule to be followed in every case. The principle is applied only in q1e absence of statutory provision to the contrary. (See the observations t find ariy ffietlt lti any of the pofots utged oh· behalf df the appeliattt this appeal is dismissed, VEltMA;J, i have fjetlisetl the dpiriidtts of fuy leatiied brethren constitututing the iiiajority takitig Hie view that the Ptevetttiori of tot~.

ruptloti Act applies. i artl uttat51e W su! Jsctibe to tfiis vie"', My dissentfog opinion is at hesf dtily academic, Ali the same 1 deem H fit to tecotd the same with itiy teasc>tis for faklttg a different view. lt is indeed i. uifO'Ttunate tkat fttis qtiestioti slwuld ~H all arise tor judidal detetmihatioti . f-Iowever, tlie questioti havihg ariseri we ate l:iotlfid w gtv1$ o'tit l:Jpinioli. In view Cif the sigttificance of the f>b'ii'it; i tetotd my tespsctfoi dissent reassured oy the ob'serva:tiotls oi 1-lugties th:tt 'unaiti". Q ' mity tvkidr i~ meteiy fotma:i, whieh is tecotded at the expense of ~ito'tig; confiktiiig vie«is, is riot desirabie in a court of last . resiJtt; whatevet tnay be the effect dri pui:iiic opinion at the time. This is StJ lJeca:use what mtist uftlmateiy sustain the coi. Jtt in public:: <>dnfidetite is the dfata:ctet a:n'd itidependeike of ftte judges. . . , , .

tt Is better ihaf tkelt ltidepeHdettce sh'ould &e tttalttttiined a:nd tecO"gnlsed tlia:n fka:t unanimity should be secured through its sacrifice. ' I would rather he a conscien~ious lone dissenter than a troubled conformist. It is in this spirit, in all humility, I record my dissent. Can the Chief Justice of a High Court or any of its puisne Judges be prosecuted for an offence punishable under the Prevention of Car· ruption Act, 1947 (hereinafter referred to as 'the Act')? This is the main question a. :ising for decision in this appeal. The appellant, K. Veeraswami, a former Chief Justice of the Madras High Court filed an application under Section 482 of the Code of Criminal Procedure, 1973 (Criminal M. P. No. 265 of 1978) to quash the proceedings in C. C. No. 46 of 1977 in the Court of the Special Judge, Madras, initiated on a .

charge-sheet accusing him of the offence of criminal misconduct under Section 5(1)(e) punishable under Section 5(2) of the Act, as amended by the Amendment Act of 1964. The matter was heard by a full bench of the High Court which dismissed the application by order dated 27. 4. 1979 according to the majority opinion of Natarajan and Mohan, JJ. while·Balasubrahmanyan, J. dissented. This appeal is by a certifi· cate granted by the High Court under Articles 132(1) and 134(1)(c)'of the Constitution of India in view of the important question of law involved for decision. The material facts are only a few. The appellant joined the Bar of Madras in the year 1941 and had a lucrative practice. In 1953 he was appointed as Assistant Government Pleader and in 1959, the Govero· ment Pleader at Madras. On 20. 2. 1960, he was elevated to the Bench of the Madras High Court being appointed as a permanent Judge of that Court. On 1. 5.

1969, he was appointed the Chief Justice of the Madras High Court, from which office he retired on 7. 4. 1976. On 24. 2. 1976, the Central Bureau of Investigation at Delhi registered a case against the appellant under the Act and on 28. 2. 1976, the First Information Report was lodged accusing the appellant of the offence of criminal misconduct under Section 5( l)(e) punishable under Section 5(2) of the Act. A charge-sheet dated 15. 12. 1977 was filed alleging that between 1. 5. 1969 and 24. 2. 1976, while the appellant was a public servant, he was in possession of pecuniary resources and property in his own name and in the names of his wife Smt. Eluthai Ammal and his two sons S/Shri V. Suresh and V. Bhaskar, which were dispropor· tionate to the extent of Rs. 6,41,416. 36p. to his known sources of income during that period and that he cannot satisfactorily account for such di~proportionate pecuniary resources and property.

The charge· sheet also gave particulars on the basis of which the disproportion in assets was alleged. ; K. VEERASWAMJ v. U . 0. 1. [VERMA, J. ] " 271 The appellant filed a petition under Section 482 Cr. P. C. in the High Court for quashing the prosecution pending in the Court of Special Judge, Madras, on the above charge-sheet, with the result indicated above. Several arguments including the allegation of mala fldes against the Central Government were advanced in the High Court on behalf of ihe appellant. It is, however, unnecessary to refer to all of them since at the hearing of the appeal before us, the appellant's case was confined only to the grounds stated hereafter and the ground of mala /ides alleged in the High G:ourt was expressly given up at the hearing before us by Shri Kapil Sibal, learned counsel for the appellant. Shri Kapil Sibal, learned counsel for the appellant advanced two arguments only.

His first contention is that the Judges of the High Courts and the Supreme Court are not within the purview of the Act, which is a special enactment applicable to public servants, in whose case prosecution can be launched after sanction granted under Section 6 of the Act, which is alien to the scheme envisaged for constitutional functionaries like Judges of the High Courts and Supreme Court. He argued that the special provisions in the Constitution of India relating to the Judges of the High Courts and the Supreme Court clearly indicate that they are not within the purview of the Act and that after their appointment in the manner prescribed, they are wholly immune from executive influence, their tenure being fixed by the Constitution, except for removal in the manner prescribed by Article 124(4).

The other argument of Shri Sibal is that one of the essential ingredients of the offence of criminal misconduct, defined in Section 5( l)(e) of the Act , which is punish able under Section 5(2) thereof, is the inability of the accused to satisfactorily account for possession of disproportionate assets, which must be evident from the documents annexed to the charge-sheet to enable the Special Judge to take cognizance of the offence and this can be possible only if the accused is asked to give his account before filing of the charge-sheet. On this basis, it was argued that the procedure for grant of sanction under Section 6 of the Act which requires the sanctioning authority to sec the explanation of the public servant before granting sanction, makes it feasible, which also shows its inapplicability to the superior Judges, in whose c~e there is no such ser~ice record or machinery provided. In a way , the second argument of Shri Sibal also is connected with his first argument.

St)ri Sibal argμed that irrespective of the desirability of enacting a law providing for the prosecution and trial of superior Judges accused of the offence of criminal misconduct, the existing law contained in the Act is inapplicable to them. In reply, the learned Solicitor General , who was followed by the learned Additional Solicitor General, stren-uously urged that the Judges of the High Courts and the Supreme Court also fall within the purview of the Act being 'public servants', which definition is wide e nough to include 'every Judge'. They argued that there is no immunity to the superior Judges as in the case of the President and the Governor under Article 36 1of the Constitution and, therefore, there was no reason to exclude to superior Judges from the purview of the Act.

The difficulty of sanction under Section 6 for the prosecution of superi0r Judges and the special provisions contained in clauses (4) and (5) of Article 124 read with Article 2 18, it was suggested, presented no difficulty since the President of India could be treated as the competent authority to grant sanction in accordance with Section 6(i)(c) of the Act in the case of the High Court and Supreme Court Judges. The learned Solicitor General and the Additional Solicitor Gene ral also urged th at adequate safeguards in the form of guidelines be suggested by this Court to preven t any abuse of e xecutive authority or harassment to independent Judges. It was suggested that some machinery involving the Chief Justice of India for grant of sanction for prosecution by the President of India , even for investigation into the offence, could be suggested by this Court for implicit compliance by the executive .

It was argued that in this manner preservation of independence of the judiciary could be ensured while treating the superior Judges also within the purview of th e Act to nable the prosecution and punishment of the corrupt ones. . . In view of the great significance of the point involved for decision which has a risen for the first time , the matter was h_eard at considerable length to illuminate the grey areas. At the hearing the consensus was that, this unfortunate controversy not envisaged earlier, having now arisen , may be, it is time that a clear provision be made within the constitutional scheme to provide for a machinery to deal with the corrupt members of the superior judiciary, which itself is necessary for preservation of the independence of the judicia ry. However, the diference is with regard to the adequacy of machinery enacted in the , existing le'gislation for this purpose . In o ther words, the difference is about the law as it is and not about what it should be.

For the purpose of eciding. this case, we have to see the law as it now t:xists. The main point for consideration is whether the Chief Justices nd puisne Judges of the High Courts are within the purview of the Act. It is implicit that if the answer is in the affirmative, then the Chief Justice and Judges of the Supreme Court also would fall within the purview of the Act and so also the Comptroller and Auditor Gener? K. VEERASWAM! v. U. 0. 1. [VERMA, J. J 273 and the Chief Election Commissioner, whose terms and conditions of office \ (a) in the case of the Delhi Special Police Establishment, of an Inspector of Police; (b) in the presidency-towns of Calcutta and Madras, of an Assistant Commissioner of Police; :' (c) in the presidency-town of Bombay, of Super>n- --j tendell! of Police; and ..

(ct) elsewhere, of a Deputy Superintendent of Police, shall investigate any offence punishable under Section 161, ' Section 165 or Section 165A of the Indian Penal Code (45 _of 1860) or under Section 5 of this Act without the order of ' a Presidency Magistrate or a Magistrate of the first class, as the case may be, or make any arrest therefor without • warrant: -' Provided that if a police officer not below the rank of an Inspector of Police is authorised by the State Government in this behalf by general or special order, he may also investigate any such offence without the order of a Presi- ... dency Magistrate or a Magistrate of the first class, as the case may be, or make arrest therefor wi~hout a warrant: Provided further that an offence referred to in clause (e) of sub-section (1) of Section 5 shall not be investigated without the order of a police officer not below the rank of a Superintendent of Police.

(2) If, from information received or otherwise, police officer has reason to suspect the comn1ission of an offence which, he is empowered to investigate under sub- , section (1) and considers that for the purpose of investiga- ".

,, tion or inquiry into such offence, it is necessary to inspect any bankers' books, then, notwithstanding anything con- ' tained in any law for the time being in force, he may inspect any bankers' books in so far as they relate to the accounts of the person suspected to have committed that offence or of any other person suspected to be holding money on behalf of such person, and take or cause to be taken certified copies of the relevant entries therefrom, and the bank concerned shall be bound to assist the police officer in the exercise of his powers under this sub-section: Provided that no power under this sub-section in relation to the accounts of any person shall be exercised by a police officer below the rank of Superintendent of Police, unless he is specially authorised in this behalf by a police officer of or above the rank of a Superintendent of Police. Explanation.

In this sub-section, the expressions "bank" and "bankers' books" shall have the meanings assigned to them in the Bankers' Books Evidence Act, 1891 (18 of 1891). 6. Previous sanction necessary for prosecution. -(!

) No court shall take cognizance of an offence punishable under Section 161 or Section 164 or Section 165 of the Indian Penal Code (45 of 1860), or under sub-section {2) or sub-section (3A) of Section 5 of this Act, alleged to have been committed by a public servant, except with the previous sanction, (a) in the case of a person who is employed in connection with the affairs of the Union and is not removable from his office save by or with the sanction of the Central Government, of the Central Government; (b) in the case of a person who is employed in connection with the affairs of a State and is not removable from his office save by or with the sanction of the State Government, of the State Government; (c) in the case of any other person, of the authority competent to remove him from his office.

(2) Where for any reason whatsoever any doubt arises whether the previous sanction as required under subsection (I) should be given by the Central or State Government or any other authority, such sanction shall be given by that Government or authority which would have been com- K. VEERASWAMI 1•. U. 0. I. [VERMA, J. [ 279 petent to remove the public servant from his office at the time when the offence was alleged to have been ... ,) committed. " • The relevant provisions of the Constitution of India are as under: "121. Restriction on discussion in Parliament. -No discussion shall take place in Parliament with respect to the conduct of any Judge of the Supreme Court or of a High Court in the discharge of his duties except upon a motion for presenting an address to the President praying for the removal of the Judge as hereinafter provided. xxx xxx xxx 124. Establishment and constitution of Supreme Court. -(! ) .......

xxx xxx xxx (4) A Judge of the Supreme Court shall not be removed from his office except by an order of the President passed after an address by each House of Parliament supported by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present and voting has been presented to the President in the same session for such removal on the ground of proved misbehaviour or incapacity. (5) Parliament may by law regulate the procedure for the presentation of an address and for the investigation and proof of the misbehaviour or incapacity of a Judge under clause (4). xxx xxx xxx 148. Comptroller and Auditor-General of India. - (I) There shall be a Comptroller and Auditor-General of India who shall be appointed by the President by warrant under his hand and seal and shall only be removed from office in like manner and on the like grounds as a Judge of the Supreme Court. xxx xxx xxx 211.

Restriction on discussion in the Legislature. - No discussion shall take place in the Legislature of a State with respect to the conduct of any Judge of the Supreme Court or of a High Court in the discharge of his duties. xxx xxx xxx 218. Application of certain prov1s10ns relating to Supreme Court to High Courts. -The provisions of clauses (4) and (5) of Article 124 shall apply in relation to a High Court as they apply in relation to the Supreme Court with the sub-titution of reference to the High Court for references to the Supreme Court. xxx xxx xxx 324. Superintendence, direction and control of elections to be vested in an Election Commission.

-( 1) - xxx xxx xxx (5) Subject to the prov1s1ons of any law made by Parliament, the conditions of service and tenure of office of the Election Commissions and the Regional Commissioners shall be such as the President may by rule determine: Provided that the Chief Election Commissioner shall not be removed from his office except in like manner and on the like grounds as a Judge of the Supreme Court and the conditions of service of the Chief Election Commissioner shall not be varied to his disadvantage after his appointment: Provided further that any other Election Commissioner or a Regional Commissioner shall not be removed .. , from office except on the recommendation of the Chief Election Commissioner. xxx xxx xxx 361. Protection of President and Governors and Rajpramukhs. -(1) The President, or the Governor or K. VEERASWAMI v. U. 0. 1. [VERMA. J.

[ 281 Rajpramukh of a State, shall not be answerable to any court for the exercise and performance of the powers and duties of his office or for any act done or purporting to be done by him in the exercise and performance of those powers and duties: Provided that the couduct of the President may be brought under review by any court, tribunal or body appointed or designated by either House of Parliament for the investigation of a charge under Article 61: Provided further that nothing in this clause shall be construed as r. estricting the right of any person to bring appropriate proceeding~ against the Government of India or the Government of a State. (2) No criminal proceedings whatsoever shall be instituted or continued against the President, or the Government of a State, in any court during his term of office. (3) No process for the arrest or imprisonment of the President, or the Governor of a State, shall issue from any court during his term of office. (4) No civil proceedings ir.

which relief is claimed against the President, or the Governor of a State, shall be instituted during his term of office in any court in respect of any act done or purporting to be done by him in his personal capacity, whether before or after he entered upon his office as President, or as Governor of such State, until the expiration of two months next after notice in writing has been delivered to the President or the Governor, as the case may be, or left at his office stating the nature of the proceedings, the cause of action therefore, the name, des2ription and place of residence of the party by whom such proceedings ·are to be instituted and the relief which he claims.

" It may also be mentioned that the Judges (Inquiry) Act, 1968 has been enacted by the Parliament to regulate the procedure for the investigation and proof of the misbehaviour or incapacity of a Judge of the Supreme Court or of a High Court and for the presentation of an address by Parliament to the President and for matters connected therewith, as contemplated by Articles 124(5) of the Constitution of India. It is in the background of these provisions that the point arising for our determination has to be decided. I may also at this stage refer to the recommendations made by the Santhanam Committee which preceded the 1964 amendment in the Act.

It is as a result of the 1964 amendment that clause (e) was inserted in Sub-section (1) of Section 5 of the Act to make the possession of disproportionate assets by a public servant by itself a substantive offence of criminal misconduct, while prior to this amendment such a provision was merely a rule of evidence contained in Sub-section (3) of Section 5 as initially enacted which was then available only to prove the offence of criminal misconduct defined in clauses (a) to (d) of Sub-section (1) of Section 5. In the Report of the Santhanam Committee, certain portions relating to the judiciary which may throw light on the question before us are extracted as under: "SECTION 12 MISCELLANEOUS xxx xxx xxx 12. 2 We did not consider the judiciary to be included in our terms of reference.

Except the Supreme Court and some subordinate courts in the Union Territories, the Government of India have no direct relation with the administration of the judiciary except that appointment of High Court Judges is made by the President. It has to be borne in n1ind, however, that all courts in india are common to the Centre and the States and can entertain and decide cases relating to exclusively Central subjects. Therefore, integrity of the judiciary is of paramount importance even for the proper functioning ofthe Central Government. Though we did not make any direct inquiries, we were informed by responsible persons including Vigilance and Special Police Establishment Officers that corruption exists in the lower ranks ofthe judiciary all over India and in some places it has spread to the higher ranks also. We were deeply distressed at this information. We, therefore, suggest that the Chief Justice of India in consultation with the. Chief Justices K. VEERASWAMI v. U. 0. 1.

[VERMA, J. ] 283 of the High Courts should arrange for a thorough inquiry into the incidence of corruption among the judiciary, and evolve, in consultation with the Central and State Governments, proper measures to prevent and eliminate it. Perhaps the setting up of vigilance organisation under the direct control of the Chief Justice of every High Court coordinated by a Central Vigilance Officer under the Chief Justice of India may prove to be an appropriate method. xxx xxx xxx SUMMARY OF CONCLUSIONS AND RECOMMENDATIONS xxx xxx xxx 117. The Chief Justice of India in consultation with the Chief Justices of the High Courts should arrange for a thorough inquiry into the incidence of corruption, among the judiciary, and evolve, in consultatipn . with the Central and State Governments, proper measures to prevent and eliminate it.

Perhaps the setting up of vigilance organisations under the direct control of the Chief Justice of every High Court coordinated by a Central Vigilance Officer under the Chief Justice of India may prove to be an appropriate method. (Para. 12. 2) xxx xxx xxx REPORT ON THE GOVERNMENT SERVANTS' CONDUCT RULES xxx xxx xxx Rule 15 15. The Committee attaches great importance to the changes recommended in the existing Rule 15 relating to the acquisition and disposal of property by Government servants. On the one hand, these reports serve as a check against corruption and on the other, it may be irritating to honest Government servants to be subject to restrictions not imposed on other citizens. It is also necessary to ensure that the reports are such as to serve the purpose for which they are obtained. Further, no reports need be obtained from those Government servants who have no opportunity to enrich themselves by unlawful means. 16.

The most important change made by the Committee in this rule is the replacement of the annual immovable property return by a complete periodical statement of assets and liabilities. In the circumstances now obtaining in the country, the immovable property return has ceased to have much significance. The Committee considers that in order to enable Government to ascertain. whether any Government servant is in possession of assets disproportionate to his known sources of income or whether he is running into debt, it is necessary that the Government servant should furnish a complete statement of his assets and liabilities periodically. 17. The Committee considers that only the more important items of movable property should be reported specifically and that it would be sufficient if Government servants report the total value of other movable property except articles of daily use like clothes, utensils, crockery, books, etc.

But it is essential that the value of 'movable property should be stated in the statement of assets and liabilities. 18. The Committee considered the argument that there was no need for the submission of periodical returns of assets and liabilities and that it would be sufficient if such a statement is given once either on entry or after promulgation of these rules and that thereafter it should be enough if the Government servant is required to report all transactions in immovahle property and all transactions in movable property exceeding a specified value. The Committee decided to recommend that Government servants should be required to submit a periodical statement of assets and liabilities, as it would not be reasonable to ... require the Government servants to report all the innumerable small transactions taking place continually. But as these small transactions may cumulatively be sizable and have a big effect on his financial position, the purpose will K. VEERASWAMI v. U. 0. 1.

[VERMA. J. ] 285 be served only by obtaining a periodical balance-sheet. The Committee, however, considers that the reports need not be frequent and that it may perhaps be sufficient if they are "' submitted once in five years . • 19. Another point that was considered by the Committee was whether jewellery should be included within the definition of movable property. The Committee recognises that inclusion of jewellery may be considered to be an unnecessary intrusion into the private affairs of a Government servant. But jewellery constitute important assets and if excluded from the definition of movable property, the balance-sheet submitted by the Government servant may not set out the true picture. " (emphasis supplied) In view of the decision by a Constitution Bench in R. S. Nayak v. A. R.

Antulay, [1984] 2 SCC 183 the correctness of which was not disputed before us, we have to assume for the purpose of this case that no sanction under Section 6 of the Act was required for prosecution of the appellant since cognizance of the offence was taken after the ~ appellant ceased to hold the office of Chief Justice on 7. 4. 1976 on hiv retirement. It was, however; contended that. for the purpose of dcciding the question of applicability of the Act to the appellant as a Judge or Chief Justice of the High Court, the office with reference to which the offence under the Act is alleged to have been committed, it is necessary to cbnsider the feasibility of grant of sanction under Section 6 of the Act for prosecution of a person holding such an office.

In other - words, the argument is that notwithstanding the fact that no sanction was required for prosecution of the appellant after his retirement, the need and feasibility of grant of the sanction under Section 6 of the Act if he was prosecuted before his retirement is the test to determine the applicability of the Act to a person holding, the office of a Judge or Chief Justice of a High Court. It is argued that if the grant of sanction unde. r Section 6 of the Act for prosecution of the incumbent for the offence is not feasible or envisaged, the clear indication is that holder of such office does not fall within the purview of the Act. The question ... ... of grant of sanction under Section 6 for the prosecution of a Judge or Chief Justice of a High Court for an offence punishable under Section 5(2) of the Act is, therefore, of considerable importance to decide the main question in this appeal. /Clauses (a), (b) and (c) in Sub-section (1) of Section 6 cxhaus- 186 SUPRIOMI: cdlJii.

t RE:PORts [i991J 3 s. c. R.. Hveiy provide f& ih,y sompeieni authority to grant sanction fot prdsecutiorl iii case of all the public servants falling within the plirview of the Ad. ActiiHHediy, sUdi previt>us saridiori is a cciridilioll pfecedent • Im t:ikiHg cognifailce cif ah offence ptlitisHable undet die Ad; . Of a 6tililic ~erhiilt who is prosecuted dUHng his coniinuailce ih tHe office. Hfollows thai ihe public servant falling within the purview tit the Aci ffiiJsi invariably fall wlthiii ori~ dHHe three clauses in Sub-sedion (i) ,of Seetioi! 6. Ii follows that \he Holder of an oflice, eveti ihoilgli a 'piltilic servant' attbrtliilg to the definitiOil in the Act, who does not fall within any tlf ille dalises (a), (bj or tel df ~uli-seclioh (1) df SettidH 6 mUst be held it> be dtiiside th~ purview of the Ad sirlce ihis special enattme. tit was ncli.

enilded io cover that category df public servants iiispite of the Mae tlefiBilioi\ of 'pl\Blk ~er\>ahi' milie Aci: this is Ifie tirtly tii:Hiher in t \Vf\idi ihese provifains of ihe At! blli oe harmonized attd giverl nitl feffed. tile sctteme o'f tke Ati is iliat a t:hi&i1c setvaiii who cmiirllits iHe offerlce of tHiliH\al i\iisctH\dlict; as defined irl \he several ciaUses of Sub'sectibh ( l) df Sedioli 5; can be puilislied in acccirdarice with Subseclioh t2J of SedMl:l 5, aher iilvesiigatioii of itte offence in tHe iiiahiier prescribed and Wilk tHe previous sanctiort of the competent auihoriiy obtained uridet Section 6 of the Act, iti a trial conducted acco\-tlii\g to the prescribed procedure. The grant of previous sanction under Section 6 being a condition precedent for the prosecution of a pul)lic servant covered by the Act, it inust follow that .

the holder of an l:lffice \vhd may be a public servaHi accordihg to the wide definition of \he expression ill ihe Aci but \Vhose category for the grani of sahctiort fur p\-osecUiitlii is not envisaged oy Set\ion 6 of the Aci, is l:llllside ihe purview of itte Act, ndt ihtended td be covered by the Act. this is the only inatllie\- irt which ~ foii-'mtihious consti\utioh di tlie provisions of ,.. ihe Ati tail be mad!! for Hie plirpose of achieving the object ot iiiat enatHllerlL Tttis appears lb be tHe obvious concltisibh evert for a case like the preserlt where rid siicfi sanction for prosecution is necessary oh the view.

taken ih Anru/ay, anti not challenged before US, that the sarldibn fdt prbseclliion under SediOh 6 is riot necessary \vheti cognifaitce of the offertce is taken after the accused has teased tb hoh:J the office ih t: and SedioH ~'Of ihe 1947 Act h~ve aii intimate and iilsejMrable relaill:lii with the office 'Of apublic servant: A public servant dcd1'pies office which renders him a 'public se\-'vani and K. VEERASWAMi v. U. O. i. [VER. MA, i. l occupying the office carries wJth it the powers conferred nit inference of knowledge about the functions and auties of the office and its misuse or abuse by the public servant. That is why the Legislature clearly provided that that authority alone would be competent to grant sanction which is entitled t~ remove the public servant against whom sanetion is sought from the office. " (emphasis supplied) (para 23, pp.

204-206) It is significarii from the above extract in Antulay that for the purpose of grant of sanction under Section 6 of the Act to prosecute the public servant, a 'vertical hierarchy between the authority competent to remove the public servant from that office and the nature of the office held by the public servant against whom sanction is sought' is clearly envisaged and, therefore, the authority competent to remove the public servant from that office should be vertically superior in the hierarchy in which the office exists having the competence to judge the, action of the public servant before removing the bar by granting sanction. In other words, Section 6 applies only in cases where there is vertical hierarchy of public offices and the public servant against whom sanction is sought is under the sanctioning authority in that hierarchy.

It would follow that where the office held by the public servant is not a part of a vertical hierarchy in which there is an authority above the public'1~rvant in that hierarchy, by the very scheme of Section 6 it can have no application and holder of such office who does not have any vertical superior above him in the absence of any such hierarchy cannot be within the ambit of the enactment, the Act not being envisaged or enacted for holder of such public office. The decisions of this Court hav. e unequivocally held that a Judge or Chief Justice of a High Court is a constitutional functionary, even though he holds a public office and in that sense, may be included in the wide definition of 'public servant'.

It is for this reason that the learned Solicitor General did not place reliance on clauses (a) and (b) of Sub-section (I) of Section 6 in the present case but relied on clause (c) thereof, to contend that sanction thereunder can be obtained for the prosecution of a Judge or Chief Justice of a High Court since the holder of such an office can be removed from office by the President in accordance with clause (4) of Article 124 of the Constitution. This is the only argument for this purpose and, therefore, its tenability has to be tested. Section 6(1)(c) provides for previous sanction 'in the case of any pther. person, of the authority competent to remove him from his A. pffice'. Clauses (4) and (5) of Article 124 which apply to a Judge of tJ)e 5upreme Court are made applicable to Judges of the High Courts h¥ ¥irJue of Article 218. Tlhese may be re-quoted here for ready- f.. "' f.! ~ference: "124. Establishment and constitution of Supreme Court. - (! ) ...

xxx xxx (4) A Judge of the Supreme 'Court sJ)all not bl' removed from his office except by an order of tl)_e l'r. esjdel! l passed after an address by each House of Pafliam. em supported by a majority of the total membership of dw House and by a majority of not less than two-thirds of the members of that House present and voting has . b. een presented to the President in the same session for such removal on the ground of proved misbehaviour or incapacit¥. (5) Parliament may by law regulate the procedure for the presentation of an address and for the investigation al\ remove or the on~ to decide the ~u! 'st\op of r~moval ano np\: q~ '! "hi~b merely pbeys -ff implemf'nts \he flef\siP! ' gf some other authority. This conclusion is reinforced by the above qtract from the Antulay decision, wqich speaks of the vertical !

iierarchy between tile authority competent to remove the public servant and the nature of the office held by the public servant ircticating that the removing 3uthority should have the competence to take a -c f! ecision on the ~aterial plap,. i:I pefore it far )he purpo;e pf 'cJ! 'd4fog whe\h~r the pub)ic sen•ant agai11s! WhC)Il1 5anctio11 is sough\, ! J~s lJ~eiJ . .. · prima fac;e guilty of flbUsf' pf ! Ji~ pffj~e s[> thfll \here is C)ff~Sipp )() l:Jring flbout cessation of interrelatio. 1 between the office an>! ~l:Juse by \he holder of the office by his remcval therefrom. Obviqi+sly, th~ compet! 'nt sanctioning aμthority envisaged thereby is a vertical superior in the hierarchy having some power of superintendence over the functioning of tile public servant. Where no such relatiRnsrip e:i yere made, it was st~ted as un~er: ' - " ......

Baldly put, the question is: Shoulp an Additional Judg~ whose misbehaviour or lack of integrity h~s come to the fore he continued as an Additional Judge or p confirmed as a Permane~t Judge? The ~nswer at the first impulse and rightly wmild be in the negative but the gpestion requir~s deeper co~~ideration. If th~ mi~be~ayio:Ur pr la~k of integrity is glaringly self-evident the que~tion of l)is continua11c~ ~bviously can~pt ~rise 11ng in all probabilities will not engage the attention of the appointil)g 9u1hority, 292 SCPREME COURT REPORTS I19911 3 S. C. R. for, the concerned Judge in such a situation would himself resign but when we talk of misbehaviour or lack of integrity on the part of an Additional Judge having come to the fore, . .. ....

by and large the instances are of suspected misbehaviour and/or reported lack of integrity albeit based on opinions expressed in responsible and respectable quarters and the serious question that arises is whether in such cases the concerned Additional Judge should be dropped merely on opinion material or concrete facts and material in regard to allegations of misbehaviour and/or lack of integrity should be insisted upon? In my view since the question relates to ,.. _ the continuance of a high constitutional functionary like the Additional Judge of High Court it would be jcopardising his security and judicial independence if action is taken on the basis of merely opinion material.

Moreover, no machinery having legal sanction behind it for holding an inquiry-disciplinary or otherwise against the concerned Judge on allegations of misbehaviour and or lack of integrity obtains in the Constitution or any law made by the Parliament, save and except the regular process of removal indicated in Art. 124(4) and (5) read with Art. 218 and the ·- Judges (Inquiry) Act, 1968. Therefore, the important question that arises in such cases of suspected misbehaviour and/or reported lack of integrity is who will decide and how whether the concerned Judge has in fact indulged in any misbehaviour or act of corruption? In the absence of satisfactory machinery possessing legal sanction to reach a positive conclusion on the alleged misbehaviour or an act ..

of corruption the decision to drop him shall have been arrived at merely on the basis-of opinions, reports, rumours or gossip and apart from being unfair and unjust to him such a course will amount to striking at the ruot of judicial independence. The other alternative, namely, to continue him as an Additional Judge for another term or to make him permanent if a vacancy is available and then take action for his removal under the regular process indicated in Art. 124(4) and (5) read with Art. 218 and Judges (inquiry) Act, ~ ~ 1968 may sound absurd but must be held to be inevitable if judicial independence, a cardinal faith of our Constitution, is to be preserved and safeguarded. Not to have a corrupt Judge or a Judge who has misbehaved is unquestionably in public interest but at the same time preserving judicial independence is of the highest public interest. It is a question of K. VEERASWAM! v. U. O.!. [VERMA, . I.

] 293 choosing the lesser evil and in inevitable course has to· be adopted not for the protection of the corrupt or dishonest judge but for protecting several other honest, conscientious and hard-working Judges by preserving their independence; it is a price which the Society has to pay to avoid the greater evil that will ensue if judicial independence is sacrificed. Considering the question from the angle of public interest therefore, I am clearly of the view ·that while considering the question of continuance of the sitting Additional Judges on the expiry of their initial term either as Additional Judges or as Permanent Judges the test of suitability contemplated within the consultative process under Art. 217(1) sho. uld not be invoked-at least until such time as proper machinery possessing legal sanction is provided for enabling a proper inquiry against an alleged errant Judge less cumbersome than the near impeachment process contemplated by Art. 124(4) and (5) of the Constitution.

" (Tulzapurkar, J. ) (pp. 920-21) " As the law now stands it is not open to. any single individual, whether it is the President or the Chief Justice of India or anybody else to take cognizance of any allegations of misbehaviour or of incapacity of a Judge and to take any legal action on their basis under the Judges F. (Inquiry) Act, 1968. One hundred Members of the Lok Sabha or fifty Members of the Rajya Sabha alone can initiate any action on such allegations. Naturally, all others are excluded from taking cognizance of them and acting on them . ...... " (Venkataramiah, J. ) (pp. 1338-39) (emphasis supplied) Even though the above observations were made in the context of continuance in office of Additional Judge of the High Court and the transfer of Judges to another High Court, yet the nature of office of a High Court Judge and the only legal sanction available under the existing law to deal with them even in the event of allegations of corruption was clearly spelt out.

It was pointed out that ordinarily such a person faced with cogent material against him would resign, but in case he does :iot, the only remedy available is his removal from office in accordance with clauses (4) and (5) of Article 124 read with Article ' 294 SURjlE~E COURT REPORTS [1991] 3 S. C. R. 21~ of the Constitution till a suitable provision with legal s~ncti. on is made. It was also pointed out that the object served in this manner was the greater public interest to preserve independence of judiciary and not to protect the corrupt Judge who was an exception. The scheme of th' ei,:i5ting law to deal with such situations was considered at length 11nd it was also held that even the power to transfer under Article 222 of the Constitution to another High Court could not be exercised for these reasons. In this context, clause (5) of Article 124 is also of considerable significance. The construction made of the provisions of the Act must .

also fit in with the scheme of clauses (4) and (5) of Article 124 read with Article 218 of the Constitution in order (o present a harmq! )io1:1s s~heme. Clause (5) of Article 124 enables enactment of~ 5peFi~l law by the Parliament to regulate the procedure for present~tion of an address and for the 'investigation' and 'proof' of the 'misbehayiour' or inc. apacity of a Judge under clause (4). It is in exercise of this power ! hilt the Parliament has . enacted the Judges (Inquiry) Act, 1968. It is p significant that clause (5) of Article 124 covers t! >e field of 'investigation' ap,d 'proof' of the 'misbehaviour' of a Judge. Th're can be no doubt that the expression 'misbehaviour' is of wide irnport and inclu~es within its ambit criminal misconduct as defined in Sub-section ( 1) of Section 5 of the Act as also lesser misconduct of a Juqge falling short of criminal misconcjuct. The special law envisaged by Article 124(5) for dealing with tl)e misbehaviour of a Judge covers tile field o.

f 'investigation' and 'proof' of the 'misbehaviour' and the onl¥ punishment provided is by Article 124(4) of removal from office. There is no escape from the cooclusion that Article 124(5) is wide enough to ... include within its ambit every conduct of a Judge amounting to misbehayiour including criminal rnis~onctuct and prescribes the procedure for investig'! tion aQd proof thereqf. Thus, even for the procedure for investigatfon in~o any misbehaviour of a Judge as well as its proof, a I. aw enact)'d by the Parliam. ent under Article 124(5) is envis. aged in the F. onstitutional scheme. Such a law in the form of the Judges (Inquiry) Act, 1968 ancj the rules framed thereunder has been enacted. These pr. ovisions )Vere made in the Constitution and the law thereunder enacted when the Prevention of Corruption Act, 1947 was in the Statute J39ok. Tile prior enactment and existence of the Prevention . of Corrupti. on Act, 1947 at th.

e time then clause (4) and (5) of Article 124 of the CottStitution were framed, does indicate the constitutional scheme that . a separate parli. amentary law to deal with the investigation and prqof pf misbehavio. ur of a Judge was clearly contemplated by providing . a special machinery for this category of constitutional functionaries 29;; 11otwiths(a1Jpi11g the general h1w available :in!! applif:aple to the pμb)i~ servants in general, wllich inclμ g! /iPmce of a11 pl{en;;e pm:iis. hab~e . ,ull. hiner¥ ipyplving t! he QAef Jμsti! 'e pf indi,a ttO ,d,e,a,l ,w~th ,tl\e ,cas.! 's . Of,erran; Jμ_cjges. The W64 11m_en. dment m,(lde iii ! he ~! ':I IWf'i##lll :to ffl,e rewmmel\illl. tipns of tl). e S. an(l;I ... sit·i~WiP. n· T. J;i,e . d. ecision in 15. P. ,Guptq . w. as rend. erect mupl) later ,an_ e-h,aviour •il)cludjng c;orr,u,ptiol). ,agaiQ. st High Cp,ur; J,udges, it was l:i. el,d tJ1. a. t the ,only machinery . w;jt)l l~gal s. anc~~Ol) in. ex. ists:l). ce is tha. t aya;i)- !

lh)~ ~N\el" 1>1. aus~ ,(4) an. d (Sj «if ~r#,cle ~2~ . of ttlJ,e {:,q,ns,ti,Wtipn. ~tis 0,easonah. le to . assume that ,-yhi\e . rendering tn. e decision in 15. P. . (juptq, 296 SCPREME COURT REPORTS [1991] 3 S. C. R. wherein the question of dealing with some Judges against whom allegations of lack of integrity and corruption also were made and the question was of the machinery available for dealing with them, the .. learned Judges could not have been unaware of the provisions of the " Act while taking the view that the only legal machinery available under the existing law is that in accordance with clauses (4) and (5) of Article 124 of the Constitution. These are strong reasons to hold that Section 6(1)(c) of the Act is inappliable to a Judge of a High Court or the Supreme Court and for that reason such constitutional functionaries do not fall within the purview of the Act.

An additional reason indicating inapplicability of the Act is the ~ practical difficulty in applying criminal misconduct, defined in clause (e) of Sub-section (I) of Section S of the Act, to a Judge of a High Court or the Supreme Court. The history of insertion of this clause by the 1964 amendment to the Act is well-known. What was earlier a rule of evidence in Sub-section (3) of Section 5 of the Act, was made a substantive offence of criminal misconduct by inserti"ng clause (e) in Sub-section (1) of Section 5 by this amendment. Apart from the argument of the learned counsel for the appellant that the inability to satisfactorily account for possession of disproportionate assets is an '-ingredient of the offence in clause (e), practical requirement of this clause is a further pointer to indicate inapplicability thereof to a Judge of a High Court or the Supreme Court.

The fact remains that while according sanction to prosecute under Section 6 of the Act, the competent authority has to satisfy itself about the public servant's inability to satisfactorily account for possession of disproportionate assets. As held in Antulay, the competent authority before granting sanction has to apply its mind and be satisfied about the existence of a prima facie case for prosecution of the public servant on the basis of the material placed before it. In order to form an objective opinion, the competent authority must undoubtedly have before it the version of the public servant on the ba<is of which the conclusion can be reached whether it amounts to satisfactory account or not. It is we-11-known and is also clear from the Report of the Santhanam Committee that the rules applicable to the public servants in general regulating their conduct reg uire them to furnish periodical information of their assets which ~ form a part of their service record.

The recommendations of the • Santhanam Committee after which the 1964 amendment inserting clause (e) in Sub-section (1) of Section 5 was made, suggest some amendment to the rules governing the conduct of public servants for giving periodical information of all their assets. Prescribing the substantive offence by insertion of clause (e) as a part of the same scheme K. VEERASWAMI v. U. 0. I. [VERMA, J. [ 297 of amendment also suggests the manner in which this requirement of the offence of inability to satisfactorily account can be examined by the competent authority while granting sanction to prosecute the public . / " servant.

These words in clause (e) have to be given some meaning which would place the burden on the prosecution, howsoever light, to make out a prima facie case for obtaining sanction of the competent authority under Section 6 of the Act and this can be done only if it is read as a part of the scheme under which the public servant is required to furnish particulars of his assets with reference to which the disproportion and his inability to satisfactorily account can be inferred. This requirement can be easily satisfied in the case of public servants gover- ... ned by conduct rules requiring them to furnish periodical returns of their assets and to intimate the superior in the hierarchy of acquisition of every materia) assets, so that his service record at all times contains particulars of his known assets.

In the case of such public servants whenever sanction to prosecute is sought under Section 6 of the Act, the competent a_uthority can form the requisite opinion on the basis of the available material including the service record of the public servant to come to the conclusion whether the. offence under clause (e) of possession of disproportionate assets which the public servant cannot _J satisfactorily account is made out prima facie In the case of Judges of the High Courts and the Supreme Court, there is no such requirement under any provision of furnishing particulars of their assets so as to provide a record thereof with reference to which such an opinion can be formed and there is no vertical superior with legal authority enabling obtaining of information from the concerned Judge. It does appear that this too is a pointer in the direction that even af~er the 1964 amendment of the Act following the Report of the Santhanam Com- ...

mittee when clause (e) was inserted in Sub-section (1) of Section 5 of the Act, the Legislature did not intend to include Judges of the High Courts and the Supreme Court within the purview of the enactment. If the Act is applicable to Judges of the High Courts and the Supreme Court, it is obvious that the same ! Pust apply also to the Chief . Justice of India, the Comptroller and Auditor General and the Chief Election Commissioner. Incongruous results would follow in such an event, even assuming that the guidelines suggested by the learned .... 4 Solicitor General, are deemed to be incorporated in the Act by implication while dealing with persons holding these offices. Apart from the legal permissibility of implying these guidelines in the Act, there are obvious practical difficulties which cannot be overcome. In the pro· posed guidelines, it was suggested that the.

involvement of the Chief Justice of India invariably should be read even for commencing the SUPREME CbURt R:El'bluS 119lJi} 3 S. C. R. lrivestigati611 irito the offence and the President, while granting the sanction uiti:ler Seciioti 6(l)(c), would also act on ihe advice of the Cliief JusiiCe of Iridia. Assuming that it is t'ertnissible io do so in the a~sence of ahy sueit pwvisiori in the Act, the problem which stares us ill ! he face is, \Vhai is l. o lie ddne where such action is contemplated agilittst the Chief 1itstice cif India himself. Any provision which cannot appiy td the Chief JustiCe of 1ndia, cannot obviously apply to the itidges of the Supreme Col! d; or fot that matter even to the I-iigli toitrt iutlges, sitlte the Chief JtJstice of India is not a vertical superior tJf atty tJf tlierii, thete being tto sUcii vertical hleratchy and the Chief Justice of 1ndla having ! lb power of siipetinterldence evet1 over the ...

High Coiirt fodges, much less the Supreine Court Judges: The incumbent of the dfflce of Chief Jusiice of lhdia exercises only moral authot tiiy ti\let his colleagues lh the Stiptefue Court arid the High Court Judges, which has ho iegai sanction behind it making ii jtlsticiable. In ! he case of the Cortipttoilet arid AuditOt Oetieral atid the Chief Eiec' lion toinihissitJiiet; ! he situaiiott would be mote piquant. Obviously, the Cliiet Justice ot ittdia tahnot be involved in the process relating to Jj ttteih ahd there is t1oi1e else. ttl fili that role in that situation. The tonstitutitJt! , while providing that their position would be akin to that of a Judge of the Supreme Court, coitid not have intended to place ihein on a pedestal higher than that of a Supreme Court Judge.

The irifirlility of this argument advanced by the learned Solicitor General invoking the aid of certain implied guideline's ittvolviitg the Chief E Justice of Ifltlia iti ihe process of coiitemplated action under the Act a~ainst a Judge of the High Court or the Stipreine Court, ieaves inore tjtiestioi1s urtanswered that it attswers. That apart, if the Act was IIHerided to apply to these ctJttsiiiuiidnal futtctionaries, it could not .. have been eliacieti leaving sttcll gaping holes which are incapable of being plugged td ! Jresent a comprehehsive scheme for this purpose. it Was aiso suggested at the hearing that the absence of need of Mlictiort fot j:frosebllioh under Section 6 of the Act after the public setvarit ceases td hoid tiffice as held in Antulay, suggests answer to the qUestion of tonstrtlction posed in this case. It does not appear to be so.

the heed for sanctidh llrtder Section 6 fdt prosecution of the holder of b a public office indicates the ariibii and scope of the enactment fot • deciding wheiher the holder of a public office falls within the purview of the ehadinent. No doubt, as held in Anrufoy, no sanction for prosecution under Sectiorl 6 is required aftet the public servant ceases to hblti tiffke, blii it does tlol lmpiy ihat every holder of a public office after tdsing lo hold that office is wiittii1 tile fllltview of tHe eliactrrlertt,. 1-1 e\iett th\Jligh doting the tertute ih tiffice, only those p\J\Jtic servants ate k. VEERAswANii v. lJ iJ i iVERMA, JI wilhiii iis ambit in whose case saHetioil uhdet Section 6 tlltisi . be dbtairled.

THe atribit of the enactment is to be determined dh the basis dt Hie pul:liic office held by ihe piiblit servant, wkiCh office is alleged id liave lieeh abused diitilig the ientire for cotliiiiihing the offence di criihirial itliscoridiid Uhder tile Ad and ii is iidt Hie fati bl cci! UifiUaHce iH ! Hat office or ceasirlg to hold it which decides tlie aml:Hi of ike eiiaetfueliL 1H other wdrds, if tile holder of a puiiiic dffice dUfilig ills ieHUfe i11 bffice ciiiliiot be pit:lSecti\ed without sanci:idri lilidet sedioh 1l; ilieH; as heid in Aniulay, i\o sandioh for his prcisectitiori after ceaSihg ill hold tile office riiay he necessary, but his prosectitidil Is made because While iii office he touiti lie pfosecUieti Wiih the previbtis sanction . Undet SeCtion 6..