A Judge as a Public Servant: Prosecution for Corruption

"(iv) any Judge, including any person empowered by law to discharge, whether by himself or as a member of any body of persons, any adjudicatory functions."

Note two things about that clause.

It is not confined to a judge of a court. It reaches any person empowered by law to discharge adjudicatory functions, alone or as a member of a body, which is why chapter 460's tribunals and chapter 1140's inquiry authorities are within it.

And the neighbouring clauses show the width of the section. Section 2(c)(v) covers any person authorised by a court of justice to perform any duty in connection with the administration of justice, including a liquidator, receiver or commissioner; section 2(c)(vi) covers any arbitrator or other person to whom any cause or matter has been referred for decision or report by a court of justice or by a competent public authority. Clause (v) is exactly the capacity in which the judge in chapter 1660's Soumitra Sen matter had held the money: a Receiver appointed by the court.

And "public duty" in section 2(b) means "a duty in the discharge of which the State, the public or the community at large has an interest", which a judicial duty plainly is.

The immunity that survives. Section 77 of the Indian Penal Code protects a Judge in respect of any act done when acting judicially in the exercise of any power which is, or which in good faith he believes to be, given to him by law. So a judge is answerable for taking a bribe and is not answerable for a wrong decision, which is the same line chapter 1680 drew when it excluded complaints directly related to the merits of a substantive decision in a judicial matter.

The offence charged in Veeraswami was under section 5(1)(e) of the 1947 Act: possession, by the public servant or by any person on his behalf, at any time during the period of his office, "for which the public servant cannot satisfactorily account, of pecuniary resources or property disproportionate to his known sources of income." As the Court noted, mere possession of disproportionate assets which cannot be satisfactorily accounted for became an offence by itself, and "known sources of income" means sources known to the prosecution, the first part of the provision casting a burden on the prosecution and the second on the accused. That offence is now section 13(1)(b) of the Act of 1988, and this book does not restate its ingredients from the 1947 wording.

And the Court was clear that a judge is a constitutional functionary, appointed by warrant under the President's hand and seal after consultation, "totally independent of the control and influence of the executive" because article 124 and article 217 allow removal only in the manner of clauses (4) and (5) of article 124. That independence is what the safeguards below are built to protect, and it is also what supplies the answer on sanction.

Note the dissent, and name it. Verma J. dissented, holding the Act inapplicable to judges of the superior courts. The majority's view is the law; an answer that reports a unanimous decision is wrong.

Second: sanction to prosecute a judge

Section 19(1) of the Act of 1988 provides that no court shall take cognizance of an offence punishable under sections 7, 11, 13 and 15 alleged to have been committed by a public servant except with previous sanction, and identifies the sanctioning authority in three clauses:

(a) for a person employed in connection with the affairs of the Union and not removable from his office save by or with the sanction of the Central Government, that Government;

(b) the same for a person employed in connection with the affairs of a State, that State Government;

(c) "in the case of any other person, of the authority competent to remove him from his office."

Clause (c) is the one that decides the question, and the reasoning is short. A judge of a superior court is not removable by the Central Government or by a State Government at all. He is removable only by an order of the President under article 124(4), chapter 1550. So the "authority competent to remove him from his office" is the President, and the President sanctions.

The Court's holding, on the corresponding clause (c) of section 6(1) of the 1947 Act: "we hold that for the purpose of clause (c) of Section 6(1) of the Act the President of India is the authority competent to give previous sanction for the prosecution of a Judge of the Supreme Court and of the High Court."

Two further points on section 19, from the text. The requirement is expressed "save as otherwise provided in the Lokpal and Lokayuktas Act, 2013", chapter 700; and the Government or competent authority shall endeavour to convey the decision within three months of receiving the proposal, extendable by one month where legal consultation is required and reasons are recorded in writing.

And a proviso added in 2018 that matters for a private complainant. A person other than a police officer or an officer of an investigation agency or other law enforcement authority cannot even request sanction unless he has filed a complaint in a competent court about the offences and the court has not dismissed it under section 203 of the Code and has directed him to obtain sanction; and on such a request the authority shall not accord sanction without giving the public servant an opportunity of being heard.

Third: the Chief Justice of India must be consulted

This is the direction that the syllabus label is really about, and it should be given in the Court's own words.

"We therefore, direct that no criminal case shall be registered under Section 154, Cr. P. C. against Judge of the High Court, Chief Justice of High Court or Judge of the Supreme Court unless the Chief Justice of India is consulted in the matter. Due regard must be given by the Government to the opinion expressed by the Chief Justice. If the Chief Justice is of opinion that it is not a fit case for proceeding under the Act, the case shall not be registered. If the Chief Justice of India himself is the person against whom the allegations of criminal misconduct are received the Government shall consult any other Judge or Judges of the Supreme Court. There shall be similar consultation at the stage of examining the question of granting sanction for prosecution and it shall be necessary and appropriate that the question of sanction be guided by and in accordance with the advice of the Chief Justice of India."

Read the four limbs separately, because they are not of equal strength.

Registration: no first information report at all without consultation, and if the Chief Justice of India says it is not a fit case, "the case shall not be registered." That is a veto, not an opinion.

Weight: "due regard must be given by the Government to the opinion expressed."

Where the Chief Justice of India is the accused: the Government shall consult any other Judge or Judges of the Supreme Court.

Sanction: similar consultation, and "it shall be necessary and appropriate that the question of sanction be guided by and in accordance with the advice of the Chief Justice of India."

And the reason, which is the sentence to quote in any question on the independence of the judiciary: the directions "would allay the apprehension of all concerned that the Act is likely to be misused by the Executive for collateral purpose."

Why the Chief Justice of India and nobody else? The Court gave two grounds. First, that he is already "a participatory functionary" in judicial office: appointments under articles 124(2) and 217(1), transfers under article 222, and a question as to the age of a High Court Judge decided by the President after consultation with him under article 217(3). Second, that "the Chief Justice being the head of the judiciary is primarily concerned with the integrity and impartiality of the judiciary", so it is "necessary that the Chief Justice of India is not kept out of the picture of any criminal case contemplated against a Judge."

Notice how different this power is from chapter 1690's. There the Chief Justice of India acts on moral authority and a court will not review it. Here he holds a judicially created legal condition on the registration of a criminal case, and a case registered without consulting him is registered in breach of a direction of the Supreme Court.

The statutory overlay of 2018, stated and no further

Section 17A was inserted into the Act of 1988 in 2018 and did not exist when Veeraswami was decided. State the text and stop.

"No police officer shall conduct any enquiry or inquiry or investigation into any offence alleged to have been committed by a public servant under this Act, where the alleged offence is relatable to any recommendation made or decision taken by such public servant in discharge of his official functions or duties, without the previous approval" of the Central Government, the State Government, or, in clause (c), "in the case of any other person, of the authority competent to remove him from his office, at the time when the offence was alleged to have been committed."

Two features worth noting from the text alone. The approval is required before an enquiry, inquiry or investigation, which is earlier than section 19's sanction, which bites at cognizance; and clause (c) uses the same formula as section 19(1)(c), "the authority competent to remove him from his office." The proviso excepts cases involving arrest of a person on the spot on a charge of accepting or attempting to accept an undue advantage, and the second proviso requires the decision within three months, extendable by one month for reasons recorded in writing.

This book holds no decision applying section 17A to a Judge of a superior court, and therefore asserts nothing about how it interacts with the Veeraswami directions. A candidate should do the same: set out the section, note that the section 17A approval and the section 19 sanction are different requirements at different stages, and say that the Veeraswami direction on consulting the Chief Justice of India is a direction of the Supreme Court and not a provision of the Act.

A worked example

An investigating agency receives a complaint that a sitting Judge of a High Court accepted money to decide a case.

Is the Act available at all? Yes. He is a public servant under section 2(c)(iv), "any Judge, including any person empowered by law to discharge ... any adjudicatory functions."

May the agency register a first information report at once? No. "No criminal case shall be registered under Section 154, Cr. P. C. ... unless the Chief Justice of India is consulted."

The Chief Justice of India says it is not a fit case. Then "the case shall not be registered."

He says it should proceed, and the investigation is completed. Who sanctions? The President, because a judge is removable only by an order of the President under article 124(4), and section 19(1)(c) points to "the authority competent to remove him from his office."

Must the Chief Justice of India be consulted again? Yes. There must be similar consultation at the sanction stage, and the question of sanction is to be guided by and in accordance with his advice.

The allegation is against the Chief Justice of India himself. The Government shall consult any other Judge or Judges of the Supreme Court.

The complaint is instead that he decided a case wrongly and in bad faith, with no allegation of money. Then section 77 of the Indian Penal Code stands in the way of treating a judicial act as an offence, and chapter 1680's filter applies too: a complaint directly related to the merits of a substantive decision in a judicial matter is filed at once.

A private citizen wants to prosecute him and applies to the President for sanction. Under the proviso to section 19(1), a person other than a police or investigation officer cannot even make the request unless he has filed a complaint in a competent court which has not been dismissed under section 203 and which has directed him to obtain sanction; and the authority must hear the public servant before according it.

And if he is convicted? He is still not removed. Conviction is not an address of both Houses. But chapter 1670's judgment records that a judicial finding of guilt of a grave crime is misconduct, and chapter 1680's steps six and seven remain available, as does a motion under article 124(4).

What beginners get wrong

Saying a judge cannot be prosecuted. He can; the decision was by a Constitution Bench and only the safeguards are special.

Saying the decision was unanimous. Verma J. dissented.

Saying the Government or the High Court sanctions. The President, because he is the authority competent to remove under section 19(1)(c).

Treating the consultation as a formality. If the Chief Justice of India says it is not a fit case, the case shall not be registered.

Confusing section 17A approval with section 19 sanction. Approval precedes the enquiry; sanction precedes cognizance.

Thinking conviction removes a judge. Only an address of both Houses and an order of the President can.

Quick revision

K. Veeraswami v. Union of India, (1991) 3 SCC 655, Constitution Bench, majority, Verma J. dissenting.

Public servant: s.2(c)(iv) of the 1988 Act, "any Judge, including any person empowered by law to discharge ... any adjudicatory functions"; under the 1947 Act by way of IPC s.21 "Third"; s.2(b) "public duty"; s.2(c)(v) a receiver or commissioner appointed by a court; IPC s.77 protects a judicial act done in good faith.

Sanction: s.19(1) for offences under ss.7, 11, 13 and 15; clause (c) points to "the authority competent to remove him from his office", which for a superior court judge is the PRESIDENT, under art 124(4); three months to decide, extendable by one; the 2018 proviso bars a private request without a complaint not dismissed under s.203 and a court's direction, and requires a hearing.

Consultation: no case registered under s.154 CrPC against a High Court Judge, a High Court Chief Justice or a Supreme Court Judge without consulting the Chief Justice of India; due regard to his opinion; if he says it is not a fit case, it shall not be registered; if he is the accused, other Judges of the Supreme Court; similar consultation at sanction, guided by and in accordance with his advice. Reason: to allay the apprehension that the Act "is likely to be misused by the Executive for collateral purpose."

s.17A (2018): previous approval before any enquiry, inquiry or investigation where the offence is relatable to a recommendation made or decision taken in the discharge of official functions, from the authority competent to remove; this book asserts nothing about its application to a judge.

Test yourself

1. Is a judge of a superior court a public servant, and may he be prosecuted for corruption? Yes on both counts. In K. Veeraswami v. Union of India, (1991) 3 SCC 655, a Constitution Bench held by a majority, Verma J. dissenting, that a judge of a High Court or of the Supreme Court, including a Chief Justice, is a public servant within the Prevention of Corruption Act and may be prosecuted under it. Under the Act of 1947 the definition was borrowed from section 21 of the Indian Penal Code, whose third description covers every judge and every person empowered by law to discharge adjudicatory functions, and the Court held the definition wide enough to include judges of the superior courts. Under the Act of 1988 the point is plainer, because section 2(c)(iv) itself defines a public servant to include any judge and any person empowered by law to discharge adjudicatory functions, whether by himself or as a member of any body of persons. What remains protected is the judicial act itself: section 77 of the Indian Penal Code shields a judge for anything done when acting judicially in the exercise of a power which is, or which in good faith he believes to be, given to him by law.

2. Who grants sanction, and why? The President of India. Section 19(1) of the Act of 1988 forbids a court to take cognizance of an offence under sections 7, 11, 13 and 15 without previous sanction, and identifies the sanctioning authority as the Central Government for a person employed in connection with the affairs of the Union who is not removable save by or with its sanction, the State Government in the corresponding case, and, in clause (c), in the case of any other person, the authority competent to remove him from his office. A judge of a superior court is removable neither by the Union nor by a State but only by an order of the President under article 124(4) following an address of both Houses, so the authority competent to remove him is the President, and the President therefore sanctions. That is what the Court held on the identically worded clause (c) of section 6(1) of the Act of 1947.

3. State the directions about consulting the Chief Justice of India. The Court directed that no criminal case shall be registered under section 154 of the Code of Criminal Procedure against a judge of a High Court, a Chief Justice of a High Court or a judge of the Supreme Court unless the Chief Justice of India is consulted in the matter; that due regard must be given by the Government to the opinion he expresses; that if he is of opinion that it is not a fit case for proceeding under the Act, the case shall not be registered; that if the Chief Justice of India himself is the person against whom allegations of criminal misconduct are received, the Government shall consult any other judge or judges of the Supreme Court; and that there shall be similar consultation at the stage of examining the question of granting sanction, the question of sanction being guided by and in accordance with his advice. The purpose stated was to allay the apprehension that the Act is likely to be misused by the executive for a collateral purpose. The Court justified the choice of the Chief Justice of India on the ground that he is already a participatory functionary in appointments under articles 124(2) and 217(1), in transfers under article 222 and in a question of a judge's age under article 217(3), and that as head of the judiciary he is primarily concerned with its integrity and impartiality, so that he should not be kept out of the picture of any criminal case contemplated against a judge.

4. How does this route compare with removal and with the in-house procedure? It is the only one of the three that can produce a coercive result against an unwilling judge. Removal requires a hundred or fifty signatures, an inquiry, a report and two special majorities in one session, and has produced no address to the President in anything this book documents. The in-house procedure produces at most advice to resign, the withdrawal of judicial work and an intimation to the President and the Prime Minister, and its report is confidential. Prosecution under the Prevention of Corruption Act produces a trial in an ordinary criminal court and can end in conviction. But it is hedged: no first information report without the concurrence of the Chief Justice of India, whose opinion that it is not a fit case is conclusive against registration; sanction by the President, guided by the Chief Justice of India's advice; and, since 2018, a separate requirement of previous approval under section 17A before any enquiry or investigation into an offence relatable to a recommendation made or decision taken in the discharge of official functions, on which this book asserts nothing further. And even a conviction does not remove the judge, since only an address of both Houses and an order of the President can do that, though a judicial finding of guilt of a grave crime is misconduct and the other routes then remain open.