TMI Blog1991 (7) TMI 368X X X X Extracts X X X X X X X X Extracts X X X X ..... ion Act interprets a public servant as meaning a public servant as defined in section 21 of the Indian Penal Code i.e. Act 45 of 1860. Section 21 of the Indian Penal Code states that a public servant denotes a person falling under any of the description mentioned therein: Third--Every Judge including any person empowered by law to discharge, whether by himself or as a member of any body of persons any adjudicarory functions. Thus, the definition of a public servant is very wide enough to include Judges of the Supreme Court as well as Judges of the High Court. Section 77 of the Indian Penal Code provides immunity to the Judges in respect of any act done by a Judge 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. The next question is whether a judge of the Supreme Court or a Judge of High Court including the Chief Justice of the High Court can be prosecuted for having committed the offence of criminal misconduct as referred to in clause (e) of sub-section 1 of section 5 of the Prevention of Corruption Act, 1947. Provisions of clause (e) of section 5(1) are as follows:- if he or any person on hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 twothirds 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. Sub-article (5) also provides that 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 2 18 states that provisions of clauses (4) and (5) of Article 124 shall apply in relation to a High Court. On a plain reading of the provisions of sub-article 4 of Article 124, a Judge of the Supreme Court can only be removed on the ground of proved misbehaviour or incapacity 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is conferred by the Constitution in public interest and not for the purpose of providing the executive with a weapon to punish a Judge who does not toe its line or who, for some reason or the other, has fallen from its grace. The executive possesses no such power under our Constitution and if it can be shownthough we see the difficulties in such showing--that a transfer of a High Court Judge is made in a given case for an extraneous reason, the exercise of the power can appropriately be struck down as being vitiated by legal mala fides. The extraordinary power which the Constitution has conferred on the President by Art. 222(1) cannot be exercised in a manner which is calculated to defeat or destroy in one stroke the object and purpose of the various provisions conceived with such care to insulate the judiciary from the influence and pressures of the executive. The power to punish a High Court Judge, if one may so describe it, is to be found only in Art. 2 18 read with Art. 124(4) and (5) of the Constitution, under which a Judge of the High Court can be removed from his office by an order of the President passed after an address by each House of Parliament, supported by a majority ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. The tyceon, the communalist, the parochialist, the faddist, the extremist and radical reactionary lying coiled up and subconsciously shaping judicial menrations are menaces to judicial independence when they are at variance with parts III and IV of the Paramount Parchment . Judges should be of stern stuff and tough fibre, unbending before power, economic or political, and they must uphold the core principle of the rule of law which says Be you ever so high, the law is above you. This is the principle of independence of the judiciary which is vital for the establishment of re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt as well as a Judge of the High Court is a constitutional functionary as has been observed by this Court in the decisions cited hereinbefore and to maintain the independence of the judiciary and to enable the Judge to effectively discharge his duties as a Judge and to maintain the rule of law, even in respect of lis against the Central Government or the State Government. The Judge is made totally independent of the control and influence of the executive by mandatorily embodying in article 124 or article-217 that a Judge can only be removed from his office in the manner provided in clause (4) and (5) of article 124. Thus, a Judge either of the High Court or of the Supreme Court is independent of the control of the executive while deciding cases between the parties including the Central Government and State Government uninfluenced by the State in any manner whatsoever. It is beyond any pale of doubt that there is no master and servant relationship or employer and employee relationship between a Judge of the High Court and the President of India in whom the executive power of the Union is vested under the provisions of Article 53 of the Constitution. The President has not been given ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le 124, clauses 4 and 5 of the Constitution for removal of the Judge. The FIR in question, which has been lodged against the appellant should be quashed and set-aside Section 2 of the Prevention of Corruption Act denotes a public servant as defined in Section 21 of the Indian Penal Code (45 of 1860). It has been noticed hereinbefore that the third clause particularly of Section 21 of the Indian Penal Code includes 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. Therefore a Judge of the High Court or of the Supreme Court comes within the definition of public servant and he is liable to be prosecuted under the provisions of the Prevention of Corruption Act. It is farthest from our mind that a Judge of the Supreme Court or that of the High Court will be immune from prosecution for criminal offences committed during the tenure of his office under the provisions of the Prevention of Corruption Act. In these circumstances the only question to be considered is who will be the authority or who is the authority to grant sanction for prosecution of a Judge of the High Court under section 6 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... est executive authority of the State, an impeachment has been provided for and in fact, President Johnson was impeached in 1867 for high crimes and misdemeanours. In 1917, Justice Archibald of the Commerce Court was removed from office by impeachment for soliciting for himself and others, favours from railroad companies, some of which were at the time litigants in his court; in 1936 the removal of Judge Wright of the Florida Court for conduct in relation to a receivership Which evoked serious doubts as to this integrity, although he was acquitted of specific charges, seem to have restored the wider view. For, in neither case, were the two judges found guilty of an indictable offence. It has been said that: As to the Judges of the United States at least lack of good behaviour and high crimes and misdemeanours are overlapping if not precisely coincidental concepts. (Seervai s Constitutional Law of India, Third Edition, Vol.II, page 1698 paras 18.8 and 18.9). It has been urged by the Solicitor General as well as the Additional Solicitor General that the Judges of the High Court cannot be said to be exempted from prosecution in respect of offences provided in the Prevent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thority competent to appoint and to remove a Judge, of course in accordance with the procedure envisaged in Article 124, clauses (4) and (5) of the Constitution, may be deemed to be the authority to grant sanction for prosecution of a Judge under the provisions of Section 6(1)(c) in respect of the offences provided in section 5(1)(e) of the Prevention of Corruption Act, 1947. In order to adequately protect a Judge from frivolous prosecution and unnecessary harassment the President will consult the Chief Justice of India who will consider all the materials placed before him and tender his advice to the President for giving sanction to launch prosecution or for filing FIR against the Judge concerned after being satisfied in the matter. The President shall act in accordance with advice given by the Chief Justice of India If the Chief Justice of India. If the chief Justices of opinion that it is not a fit case for grant of sanction for prosecution of the Judge concerned the President shall not accord sanction to prosecute the Judge;This will save the Judge concerned from unnecessary harassment as weal as from frivolous prosecution against him as suggested by my learned brother Shetty, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he harassment of frivolous or unsubstantiated allegations. The policy underlying Sec. 6 and similar sections, is that there should not be unnecessary harassment of public servant (C.R. Bansi v. State of Maharashtra), [1971] 3 S.C.R. 236. Existence thus of a valid sanction is a prerequisite to the taking of cognizance of the enumerated offences alleged to have been committed by a public servant. The bar is to the taking of cognizance of offence by the court. Therefore, when the court is called upon to take cognizance of such offences, it must enquire whether there is a valid sanction to prosecute the public servant for the offence alleged to have been committed by him as public servant. Undoubtedly the accused must be a public servant when he is alleged to have committed the offence of which he is accused because Sections 161, 164, 165 IPC and Sec. 5(2) of the 1947 Act clearly spell out that the offences therein defined can be committed by a public servant. If it is contemplated to prosecute public servant who has committed such offences, when the court is called upon to take cognizance of the offence, a sanction ought to be available otherwise the court would have no jurisdiction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The appellant started his life as an Advocate in the High Court of Madras. He joined the Madras Bar in 1941. In 1953 he was appointed as Assistant Government Pleader. In 1959 he became Government Pleader. He held that post till 20 February 1960 when he was elevated to the Bench as a permanent Judge of the Madras High Court. On 1 May 1969, he became the Chief Justice of the Madras High Court. During his tenure as the Judge and Chief Justice he was said to have acquired assets disproportionate to the known source of income. The complaint in this regard was made to the Delhi Special Police Establishment ( CBI ). On 24 February 1976, the CBI registered a case against him with issuance of a First Information Report which was filed in one of the Courts at New Delhi. It was alleged in the First Information Report that taking into consideration the sources of income of the appellant as a Judge and Chief Justice of the High Court and the mode and style of his living with the probable expenses required during the period of his Judgeship/Chief Justiceship, it is reasonably believed that the appellant cannot satisfactorily account fox the possession of assets which are far disproportion he to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court granted certificate for appeal to this Court. It may be noted that before the High Court every conceivable point was argued. They are various and varied. We may briefly refer to those contentions not for the purpose of examining them, since most of them have not been pressed before us, but only to indicate as to how the appel lant projected his case. It was inter alia, contended that the Judges of the High Court and Supreme Court shall not be answerable before the ordinary criminal courts but only answerable to Parliament. The Parliament alone could deal with their misbehaviour under the provisions of Articles 124(4) and (5) read with Articles 217 and 218 of the Constitution. The Judge shall hold office until the age of superannuation subject to earlier removal for proved misbehaviour or incapacity. This protection to Judges will be defeated if they are compelled to stand trial for offence committed while discharging duties of their office even before retirement. Even the Parliament or the State Legislatures are not competent to make laws creating offences in matters relating to discharge of Judge s duties. Any such law would vitiate the scheme and the federal structur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en 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 of 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 confor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) 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 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 Code (or under clause (ii) of sub-section (3) of section 5 of this Act) it is proved that any gratification (other than legal remuneration) or any valuable thing has been given or offered to be given or attempted to be given by an accused person, it shall be presumed unless the contrary is proved that he gave or offered to give or attempted to give that gratification or that valuable thing, as the case may be as a motive or reward such as is mentioned in section 161 of the Indian Penal Code or, as t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rded in writing, impose a sentence of imprisonment of less than one year. (3) Whoever habitually commits- (i) an offence punishable under section 162 or section 163 of the Indian Penal Code, or (ii) an offence punishable under section 165 A of the Indian Penal Code, shall be punishable with imprisonment for a term which shall not be less than one year but which may extend to seven years, and shall also be liable to fine: Provided that the court may, for any special reasons recorded in writing, impose a sentence of imprisonment of less than one year. (3A) Whoever attempts to commit an offence referred to in clause (c) or clause (d) of sub-section (1) shall be punishable with imprisonment for a term which may extend to three years, or with fine, or with both. (3B) Where a sentence of fine is imposed under subsection (2) or sub-section (3), the court in fixing the amount of fine shall take into consideration the amount or the value of the property, if any, which the accused person has obtained by committing the offence or where the conviction is for an offence referred to in clause (e) of subsection (1), the pecuniary resources or property referred to in that clause for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, or make any arrest therefor without a 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 Presidency Magistrate or a Magistrate of the first class, as the case may be, or make arrest therefor without 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. The Act was intended to suppress bribery and corruption in public administration and it contains stringent provisions. Section 4 raises presumption unless the contrary is proved by the accused in respect of offence punishable under section 161 or section 165 of the Indian Penal Code or of an offence referred to in clause (a) or clause (b) of section 5(1) of the Act. Section 5 of the Act creates offence of criminal misconduct on the part of a public servant. The public servant defined under section 2 means a public servant as defined in Section 21 of the IPC. Section 21 of the IPC is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... morale of public servants and also the administrative interest of the State. The discretion to prosecute public servant is taken away from the prosecuting agency and is vested in the authority which is competent to remove the public servant. The authority competent to remove the public servant would be in a better position than the prosecuting agency to assess the material collected in a dispassionate and reasonable manner and determine whether sanction for prosecution of a public servant deserves to be granted or not. Section 6 may now be analysed. Clause (a) of Section 6(1) covers public servants employed in connection with the affairs of the Union. The prescribed authority for giving prior sanction for such persons would be the Central Govern ment. Clause (b) of Section 6(1) covers public servants employed in connection with the affairs of the State. The authority competent to give prior sanction for prosecution of such persons would be the State Government. Clauses (a) and (b) would thus cover the cases of public servants who are employed in connection with the affairs of the Union or State and are not removable from their office save by or with the sanction of the Central ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 , wit-hout 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 the particular and specific words. (See ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 conspicuously 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 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 IPC may be amended as stated below: Third-Every Judge including any person entrus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, while 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t quite shortly, were the contentions addressed to us on the authority competent to grant sanction for prosecution of Judges of the superior judiciary. We agree with counsel for the appellant that Parliament could not have been intended to be the sanctioning authority under clause (c) of Section 6(1). The composition of Parliament consisting 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 praying for the removal of the Judge as hereinafter provided. The only exception made in the Constitution for discussion on the conduct of a Judge is when the motion is taken up for his removal. On no other occasion the conduct of a Judge in the discharge of duties coul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... against the accused. The Act also creates a new offence of criminal misconduct by public servants though to some extent it overlaps on the pre-existing offences and enacts a rebuttable presumption contrary to the well-known principles of Criminal Jurisprudence. It also aims to protect honest public servants from harassment by prescribing that the investigation against them could be made only by police officials of particular status and by making the sanction of the Government or other appropriate officer a pre-condition for their prosecution. As it is a socially useful measure conceived in public interest, it should be liberally construed so as to bring about the desired object i.e. to prevent corruption among public servants and to prevent harassment of the honest among them. In Craies on Statute Law. (6th ed. p. 531) it is stated that the distinction between a strict and a liberal construction has almost disappeared with regard to all classes of statutes, so that all statutes, whether penal or not, are now construed by substantially the same rules ..... They are construed now with reference to the true meaning and real intention of the Legislature. The construction which w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 67(b) of the Constitution provides that the Vice-President may be removed from his office by a resolution of the Council of States passed by a majority of all the then members of the Council and agreed to by the House of People. Article 94(c) provides that the Speaker may be removed from his office by a resolution of the House of the People passed by a majority of all the then members of the House. The resolution passed in accordance with the procedure prescribed under the respective provisions for removing the President, Vice-President and the Speaker, will ipso facto operate against those authorities. No further order from any other authority for their removal is necessary. But that is not the position in the case of removal of a Judge. Clause (4) of Article 124 mandates that a Judge shall not be removed from his office except by an order of the President passed after an address by each House of Parliament ... The clause (4) is in the negative terms. The order of the President is sine qua non for removal of a Judge. The President alone could make that order. It is said that Section 6 envisages that the authority competent to remove a public servant from the office shoul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n a position to appreciate the material collected against the public servant to judge whether the prosecution contemplated is frivolous or speculative Under our enactment the power has been conferred on the authority competent to remove the public servant. Under the British Prevention of Corruption Act, 1906 the power to give consent for prosecution for an offence under that Act has been conferred upon the Attorney General or Solicitor General. The President is not an outsider so far judiciary is concerned. The President appoints the Judges of the High Courts and the Supreme Court in exercise of his executive powers. Clause (1) of Article 217 provides that every Judge of the High Court shall be appointed by the President after consultation with the Chief Justice of India, the Governor of the State, and in the case of appointment of a Judge Other than the Chief Justice, the Chief Justice of the High Court. Similarly the President appoints the Judges of the Supreme Court. Clause (2) of Article 124 provides that every Judge of the Supreme Court shah be appointed by the President in consultation with such of the Judges of the supreme Court and of the High Courts as the President may ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... should forthwith tender his resignation unless he obtains stay of his conviction and sentence. He shall not insist on his right to sit on the Bench till he is cleared from the charge by a Court of competent jurisdiction. The judiciary has no power of the purse or the sword. It survives only by public confidence and it iS important to the stability of the society that the confidence of the public is not shaken. The Judge whose character is clouded and whose standards of morality and rectitude are in doubt may not have the judicial independence and may not command confidence of the public. He must voluntarily withdraw from the judicial work and administration. The emphasis on this point should not appear superfluous Prof. Jackson says Misbehaviour by a Judge, whether it takes place on the bench or off the bench, undermines public confidence in the administration of justice, and also damages public respect for the law of the land; if nothing is seen to be done about it, the damage goes unrepaired. This must be so when the judge commits a serious criminal offence and remains in office . (Jackson s Machinery of Justice by J.R. Spencer 8th ed. p.p. 369-370) The proved misbehaviou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act 7-0-71) provides power to the Court to take civil and criminal contempt proceedings. But we know of no law providing protection for Judges from Criminal prosecution. Article 361(2) confers immunity from criminal prosecution only to the President and Governors of States and to no others. Even that immunity has been limited during their term of office. The Judges are liable to be dealt with just the same way as any other person in respect of criminal offence. It is only in taking of bribes or with regard to the offence of corruption the sanction for criminal prosecution is required. The position in other countries seems to be not different. In the book Judicial Independence--The Contemporary Debate by S. Shetreet and J. Deschenes (1985 ed.) -there is an article titled as Who watches the Watchman by Mauro Cappelletti. The author has surveyed the penal liability of judges in the legal systems of some of the countries. The author states. In a number of national systems one can also find the provision of criminal sanctions for certain acts or omissions that are typical only of the administration of Justice, such as deni de justice, or wilful abuse of the judicial office. E ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct. Care should be taken that nonest and fearless judges are not harassed. They should be protected. In the instant case the then Chief Justice of India was requested to give his opinion whether the appellant could be proceeded under the Act. It was only after the Chief Justice expressed his views that the appellant could be proceeded under the provisions of the Act, the case was registered against him. Mr. Tulsi, learned Additional Solicitor General submitted that he has no objection for this Court for issuing a direction against the Government of India to follow that procedure in every case. But Counsel for the appellant has reservations. He maintained that it would be for the State to come forward with u separate enactment for the Judges consistent with the Constitutional provisions for safeguarding the independence of the judiciary and not for this Court to improve upon the defective law. In our opinion, there is no need for a separate legislation for the Judges. The Act is not basically defective in its application to judiciary. All that is required is to lay down certain guidelines lest the Act may be misused. This Court being the ultimate guardian of rights of people and ind ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be necessary and appropriate that the question of sanction be guided by and in accordance with the advice of the Chief Justice of India. Accordingly the directions shall go to the Government. These directions, in our opinion, would allay the apprehension of all concerned that the Act is likely to be misused by the Executive for collateral purpose. For the reasons which we have endeavoured to outline and subject to the directions issued, 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. It remains only to deal with one short point in this part of the discussion. The High Court has expressed the view that no sanction for prosecution of the appellant under Section 6 was necessary since he has retired from the service on attaining the age of superannuation and was not a public servant on the date of filing the chargesheet. The view taken by the High Court appears to be unassailable. The scope of Section 6 was first considered by this Court in S.A. Venkatararnan s case, where it was observed (at 1048) that Secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 5(3) which was in these terms: In any trial of an offence punishable under sub-section (2) the fact that the accused person or any other person on his behalf is in possession, for which the accused person cannot satisfactorily account, of pecuniary resources or property disproportionate to his known sources of income may be proved, and on such proof the court shall presume, unless the contrary is proved, that the accused person is guilty of criminal misconduct in the discharge of his official duty and his conviction therefor shall not be invalid by reason only that it is based solely on such presumption. This Section 5(3) does not create a new offence but only provides an additional mode of proving an offence punishable under Section 5(2) for which any accused person was being tried. It enables the Court to raise a presumption of guilt of the accused in certain circumstances. This additional mode is by proving the extent of the pecuniary resources or property in the possession of the accused or any other person on his behalf and thereafter showing that this is disproportionate to his known sources of income. If these facts are proved the section makes it obligatory f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erred. In Maharashtra v. K.K.S. Ramaswamy, [1978] 1 SCR 274, Shinghal, J., said (at 276) that the result of the enactment of clause (e) is that mere possession of pecuniary resources or property disproportionate to the known sources of income of a public servant, for which he could not satisfactorily account, became an offence by itself although Section 5(3) which existed prior to Section 5(1)(e) did not constitute an offence. In State of Maharashtra v. Wasudeo Ramachandra Kaidalwar, [1981] 3 SCR 675, Sen, J., spelled out succintly the insight of clause (e) of Section 5(1) (at pp. 682 to 684): The terms and expressions appearing in s. 5(1)(e) of the Act are the same as those used in the old section 5(3). Although the two provisions operate in two different fields, the meaning to be assigned to them must be the same. The expression known sources of income means sources known to the prosecution . So also the same meaning must be given to the words for which the public servant is unable to satisfactorily account occurring in s. 5(1)(e). No doubt s. 4(1) provides for presumption of guilt in cases falling under ss. 5(1)(a) and (b), but there was, in our opinion, no need to m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in possession of the accused were disproportionate to his known sources of income. Once these four ingredients are established, the offence of criminal misconduct under s. 5(1)(e) is complete, unless the accused is able to account for such resources or proper The burden then shifts to the accused to satisfaction. account for his possession of disproportionate assets. The extent and nature of burden of proof resting upon the public servant to be found in possession of disproportionate assets under s. 5(1)(c) cannot be higher than the test laid by the Court in Jahgan s case (supra), i.e. to establish his case by a preponderance of probability. That test was laid down by the Court following the dictum of Viscount Sankey, L.C. in Woolmington v. Director of Public prosecutions. The soundness of the reasoning in Wasudeo Ramachandra Kaidalwar case (supra) has been doubted. Counsel for the appellant urged that the view taken on Section 5(3) cannot be imported to clause (e) of Section 5(1) and the decision, therefore, requires reconsideration. But we do not think that the decision requires reconsideration. It is significant to note that there is useful parallel found in Section 5(3) an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case. The principle is applied in the absence of statutory provision to the contrary. (See the observations of Lord Templeman and Lord Griffiths in Rig. v. Hunt, [1986] 3 WLR 1115 at 1118 and 1129). Counsel for the appellant however, submitted that there is no law prohibiting a public servant having in his possession assets disproportionate to his known sources of income and such possession becomes an offence of criminal misconduct only when the accused is unable to account for it. Counsel seems to be focussing too much only on one part of clause (e) of Section 5(1). The first part of clause (e) of Section 5(1) as seen earlier relates to the proof of assets possessed by the public servant. When the prosecution proves that the public servant possesses assets disproportionate to his known sources of income the offence of criminal misconduct is attributed to the public servant. However, it is open to the public servant to satisfactorily account for such disproportionality of assets. But that is not the same thing to state that there is no offence till the public servant is able to account for the excess of assets. If one possesses assets beyond his legitimate means, it goes without ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ust collects material from all sides and prepares a report which he files in the Court as charge sheet. The charge sheet is nothing but a final report of police officer under Section 173(2) of the Cr. P.C. The Section 173(2) provides that on completion of the investigation the police officer investigating into a cognizable offence shall submit a report. The report must be in the form prescribed by the State Government and stating therein (a) the names of the parties; (b) the nature of the information; (c) the names of the persons who appear to be acquainted with the circumstances of the case; (d) whether any offence appears to have been committed and, if so, by whom (e) whether the accused has been arrested; (f) whether he had been released on his bond and, if so, whether with or without sureties; and (g) whether he has been. forwarded in custody under Sec. 170. As observed by this Court in Satya Narain Musadi and Ors. v. State of Bihar, [1980] 3 SCC 152 at 157; that the statutory requirement of the report under Section 173(2) would be complied with if the various details prescribed therein are included in the report. This report is an intimation to the magistrate that upon inve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y can condone such betrayal. From the standpoint of justice the size of the bribe or scope of corruption cannot be the scale for measuring a judge s dishonour. A single dishonest judge not only dis- honours himself and disgraces his office but jeopardizes the integrity of the entire judicial system. A judicial scandal has always been regarded as far more deplorable than a scandal involving either the Executive or a member of the Legislature. The slightest hint of irregularity or impropriety in the Court is a cause for great anxiety and alarm. A legislator or an administrator may be found guilty of corruption without apparently endangering the foundation of the State. But a Judge must keep himself absolutely above suspicion to preserve the impartiality and independence of the judiciary. and to have the public confidence thereof. SHARMA, J. I have gone through the learned judgments of Mr. Justice Ray, Mr. Justice Shetty and Mr. Justice Verma. I agree with Mr. Justice Ray and Mr. Justice Shetty that the appeal should be dismissed. In view of the elaborate discussion of the facts and law in the judgments of my learned brothers, I am refraining from dealing with them in detail, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... move in the matter and finally an order has to be passed by the President. Thus although more than one person are involved in the process, it is not permissible to say that no authority exists for the purpose of exercising the power to remove a High Court Judge from his office. As to who is precisely the authority in this regard is a matter which, in my view, does not arise in the present case, but the vital question whether such an authority exists at all must be answered in the affirmative. 4. It has been strenuously contended by Mr. Sibal, learned counsel for the appellant, that the Constitution envisages an independent judiciary, and to achieve this goal it is essential that the other limbs of the State including the executive and the lagislature should be denied a position from where the judiciary can be pressurized. 5. The State is an organisation committed to public good; it is not an end in itself. Its different branches including the legislature, judiciary and the executive are intended to perform different assigned important functions. Judiciary has a duty to dispense justice between person and person as also between person and State itself. To be able to perform i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ifferently. There cannot be any rational ground on the basis of which a member of a higher judiciary may be allowed to escape prosecution while in identical circumstances a member of the subordinate judiciary is tried and convicted. Such an interpretation of the Act will militate against its constitutional validity and should not, therefore, be preferred. 7. There is still another reason indicating that the interpretation suggested on behalf of the appellant should not be accepted. If it is held that a member of the higher judiciary is not liable to prosecution for an offence under Section 5 on account of the requirement of previous sanction under Section 6, it will follow that he will be immune from the prosecution not only under Section 5(1)(e) as is the present case, but also for the other offences under Clauses (a) to (d). So far offences punishable under Sections 161, 164 and 165 of the Indian Penal Code are concerned they are also subject to such-previous sanction. The result will be serious. It is a well established principle that no person is above the law and even a constitutional amendment as contained in Article 329 A in the case of the Prime Minister was struck down ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ultimately it is the order of the President which is necessary for the removal of a Judge, he must be treated to be the competent authority. Taking into consideration the independence of judiciary as envisaged by the Constitution, it has further been observed that the Chief Justice of India will have to be consulted in the matter and steps would have to be taken in accordance with his advice. Mr. Justice Ray and Mr. Justice Venkatchaliah are in agreement with this view. These observations, I believe, would be not only acceptable, but welcome to the Union of India, as during the hearing it was at the suggestion of the learned Solicitor General and the Additional Solicitor General, that the desirability of the aforesaid direction in the judgment was considered by the Bench. I also fully appreciate that if the executive follows this rule strictly, a further protection from harassment of the judges by uncalled for and unjustified criminal prosecution shall be available. But in my view such a binding direction cannot be issued by this Court on the basis of the provisions of the Constitution and the Act. 10. Before proceeding further 1 would again state that having answered the questi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gainst the Judges by incorporating the provisions of Clauses (4) and (5) in Article 124, they must be treated to be appropriate and suitable; and should be resorted to in the matter of prosecution also, in view of the Parliament enacting Section 6 of the Act in the language which attracts the constitutional provisions. 13. It has been argued that in view of the constitutional prohibition against any discussion in Parliament with respect to the conduct of a Judge of the superior court, except in connection with his removal under Article 124, it will not be possible to obtain the necessary sanction as mentioned in Section 6 of the Act, except by initiating a motion for removal also simultaneously; and then, it will be a time consuming process. I will assume the contention to be correct, but for that reason I do not think that the correct interpretation of the legal position can be discorrected, as it does not lead to any illegal consequence, untenable position or an absurd result. It is true that the grant of sanction will be delayed until the accusation is examined according to the law enacted under Clause (5) of Article 124, but once that stage is over and a finding is recorded ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the name of his wife and two sons, were disproportionate by a sum of over ₹ 6 lacs to his known sources of income during the relevant period and which he cannot satisfactorily account . 15. Since I do not find any merit in any of the points urged on behalf of the appellant this appeal is dismissed. VERMA, J. I have perused the opinions of my learned brethren constituting the majority taking the view that the Prevention of Corruption Act applies. I am unable to subscribe to this view. My dissenting opinion is at best only academic. All the same I deem it fit to record the same with my reasons for taking a different view. It is indeed unfortunate that this question should at all arise for judicial determination. However, the question having arisen we are bound to give our opinion. In view of the significance of the point, I record my respectful dissent reassured by the observations of Hughes that unanimity which is merely formal, which is recorded at the expense of strong, conflicting views, is not desirable in a court of last resort, whatever may be the effect on public opinion at the time. This is so because what must ultimately sustain the court in public confidence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erty 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 disproportionate to the extent of ₹ 6,41,416.36p. to his known sources of income during that period and that he cannot satisfactorily account for such disproportionate pecuniary resources and property. The charge sheet also gave particulars on the basis of which the disproportion in assets was alleged. 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 chargesheet, with the result indicated above. Several arguments including the allegation of mala fides against the Central Government were advanced in the High Court on behalf of the 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 fides alleged in the High Court 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 ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erior Judges as in the case of the President and the Governor under Article 36 1 of 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 superior 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(1)(c) of the Act in the case of the High Court and Supreme Court Judges. The learned Solicitor General and the Additional Solicitor General also urged that adequate safeguards in the form of guidelines be suggested by this Court to prevent any abuse of executive 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 ensure ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to widen its ambit and bring these constitutional functionaries within it since such an exercise would be wholly impermissible in the garb of judicial craftmanship which cannot replace legislation in a vergin field. Judicial activism can supply the deficiencies and fill gaps in an already existing structure found deficient in some ways, but it must stop sort of building a new edifice where there is none. In a case like the present, the only answer can be a definite yes or definite no , but not yes with the addition of the legislative requirements in the enactment which are wholly absent and without which the answer cannot be yes . In my considered view laying down guidelines to be implicitly obeyed, if they find no place in the existing enactment and to bring the superior Judges within the purview of the existing law on that basis, would amount to enacting a . new law outside the scope of the existing law and not merely construing it by supplying the deficiencies to make it workable for achieving the object of its enactment. It was suggested at the hearing that the guidelines so suggested and supplied with the aid of which the existing law could be made applicable to superior ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y clauses (a), (b) and (c) of Sub-section (1) of Section 6 of the Act. It is for this reason that Section 6 assumes significance for the applicability of the Act since previous sanction for prosecution is necessary for taking cognizance of an offence under Section 5(2) of the Act and in situations where no such sanction can be envisaged, the Act cannot be made applicable. The relevant provisions of the Act as in existence after the 1964 amendment are quoted as under: 2. Interpretation.--For the purposes of this Act, public servant means a public servant as defined in Section 21 of the Indian Penal Code (45 of 1860). XXX XXX XXX 4. Presumption where public servant accepts gratification other than legal remuneration.--( 1) Where in any trial of an offence punishable under Section 16 1 or Section 165 of the Indian Penal Code (45 of 1860) or of an offence referred to in clause (a) or clause (b) of sub-section (1) of Section 5 of this Act punishable under sub-section (2) thereof, it is proved that an accused person has accepted or obtained, or as agreed to accept or attempted to obtain, for himself or for any other person, any gratification (other than legal remuneration) or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y misappropriates or otherwise converts for his own use any property entrusted to him or under his control as a public servant or allows any other person so to do, or (d) if he, by corrupt or illegal means or by otherwise abusing his position as public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage, or (e) if he or any person on his behalf is in possession or has, at any time during the period of his office, been in possession, for which the public servant cannot satisfactorily account, of pecuniary resources or property disproportionate to his known sources of income. (2) Any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall not be less than one year but which may extend to seven years and shall also be liable to fine: Provided that the court may, for any special reasons recorded in writing, impose a sentence of imprisonment of less than one year. XXX XXX XXX 5A. Investigation into cases under this Act.--(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1898 (5 of 1898), no police officer below the rank,-- (a) in the case of the Delhi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of 1891). 6. Previous sanction necessary for prosecution.--(1) 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 subsection (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 (1) 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 petent to remove the public servant fr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs 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 Commis sioner 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 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 conduct 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 restricting the right of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 mind, 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 of the 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 of the 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 of the High Courts should arrange for a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 immovable 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 an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 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 exhaus- tively provide for the competent authority to grant sanction for prosecution in case of all the public servants failing within the purview of the Act. Admittedly, such previous sanction is a condition precedent for taking cognizance of an offence punishable under the Act, of a public servant who is prosecuted during his continuance in the office. It follows that the public servant falling within the purview of the Act must invariably fall within one of the three clauses in Sub-section (1) of Section 6. It follows that the holder of an office, even though a public servant according to the definition in the Act, who does not fall within any of the clauses (a), (b) or (c) of Sub-section (1) of Section 6 must be held to be outside the purview of the Act since this special enactment was not enacted to cover that category of public servants inspite of the wide definition of public servant in the Act. This is the only manner in which these provisions of the Act can be harmonized and given full effect. The scheme o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the corrupt conduct is directly attributable and flows from the power conferred on the office. The interrelation and interdependence between individual and the office he holds is substantial and not severable. Each of the three clauses of subsection (1) of Section 6 uses the expression office and the power to grant sanction is conferred on the authority competent to remove the public servant from his office and Section 6 requires a sanction before taking cognizance of offences committed by public servant. The offence would be committed by the public servant by misusing or abusing the power of office and it is from that office, the authority must be competent to remove him so as to be entitled to grant sanction. The removal would bring about cessation of interrelation between the office and abuse by the holder of the office. The link between power with opportunity to abuse and the holder of office would be severed by removal from office. Therefore, when a public servant is accused of an offence of taking gratification other then legal remuneration for doing or forebearing to do an official act (Section 161 (IPC) or as a public servant abets offences punishable under Sections 161 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e placed before him, to judge whether a serious offence is committed or the prosecution is either frivolous or speculative. That authority alone would be competent to judge whether on the facts alleged, there has been an abuse or misuse of office held by the public servant. That authority would be in a position to know what was the power conferred on the office which the public servant holds, how that power could be abused for corrupt motive and whether prima facie it has been so done. That competent authority alone would know the nature and functions discharged by the public servant holding the office and whether the same has been abused or misused. It is the 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 which would indicate a hierarchy and which would therefore, permit inference of knowledge about the functions and duties 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 to remove the public servant against w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Supreme Court are made applicable to Judges of the High Courts by virtue of Article 218. These may be re-quoted here for readyreference: 124. Establishment and constitution of Supreme Court (1) ... 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 the House and by a majority of not less than twothirds 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 218. Application of certain provisions 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 substitution of references to the High Court for references to the Supreme Court. According to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... igh Court Judge is a high constitutional functionary and while dealing with the question of the machinery having legal sanction to deal with a High Court Judge against whom allegations of lack of intergrity and corruption were made, it was stated as under: . ..... Baldly put, the question is: Should an Additional Judge whose misbehaviour or lack of integrity has come to the fore he continued as an Additional Judge or confirmed as a Permanent Judge? The answer at the first impulse and rightly would be in the negative but the question requires deeper consideration. If the misbehaviour or lack of integrity is glaringly self-evident the question of his continuance obviously cannot arise and in all probabilities will not engage the attention of the appointing authority, 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 concerne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... il 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) should 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 (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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e misbehaviour and the only punishment provided is by Article 124(4) of removal from office. There is no escape from the conclusion that Article 124(5) is wide enough to include within its ambit every conduct of a Judge amounting to misbehaviour including criminal misconduct and prescribes the procedure for investigation and proof thereof. Thus, even for the procedure for investigation into any misbehaviour of a Judge as well as its proof, a law enacted by the Parliament under Article 124(5) is envisaged in the constitutional scheme. Such a law in the form of the Judges (inquiry) Act, 1968 and the rules framed thereunder has been enacted. These provisions were made in the Constitution and the law thereunder enacted when the Prevention of Corruption Act, 1947 was in the Statute Book. The prior enactment and existence of the Prevention of Corruption Act, 1947 at the time then clause (4) and (5) of Article 124 of the Constitution were framed, does indicate the constitutional scheme that a separate parliamentary law to deal with the investigation and proof of misbehaviour of a Judge was clearly contemplated by providing a special machinery for this category of constitutional function ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r of a Judge in accordance with Article 124(5) of the Constitution. The decision in S.P. Gupta was rendered much later and while dealing with the situations arising out of allegations of misbehaviour including corruption against High Court Judges, it was held that the only machinery with legal sanction in existence is that available under clauses (4) and (5) of Article 124 of the Constitution. It is reasonable to assume that while rendering the decision in S.P. Gupta, where in 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) 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 governed by conduct rules requiring them to furnish periodical returns of their/assets and to intimate the superior in the hierarchy of acquisition of every material 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 authority 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 satisfactorily account is made ou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the Supreme Court and the High Court Judges, which has no legal sanction behind it making it justiciable. In the case of the Comptroller and Auditor General and the Chief Election Commissioner, the situation would be more piquant. Obviously, the Chief Justice of India cannot be involved in the process relating to them and there is none else to fill that role in that situation. The Constitution, while providing that their position would be akin to that of a Judge of the Supreme Court, could not have intended to place them on a pedestal higher than that of a Supreme Court Judge. The infirmity of this argument advanced by the learned Solicitor General invoking the aid of certain implied guidelines involving the Chief Justice of India in the process of contemplated action under the Act against a Judge of the High Court or the Supreme Court, leaves more questions unanswered that it answers. That apart, if the Act was intended to apply to these constitutional functionaries, it could not have been enacted leaving such gaping holes which are incapable of being plugged to present a comprehensive scheme for this purpose. It was also suggested at the hearing that the absence of need of s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the purpose of construction of the provisions of the enactment and determining its scope that Section 6 which prescribes the condition precedent of previous sanction for prosecution for the offence of criminal misconduct punishable under Section 5(2) of the Act, holds the key which unlocks the true vistas of the enactment. The concept of sanction for prosecution by a superior is so inextricably woven into the fabric of the enactment that the pattern is incomplete without it. The clear legislative intent is that the enactment applies only to those in whose case sanction of this kind is contemplated and those to whom the provision of sanction cannot squarely apply are outside its ambit. The provision for sanction is like the keystone in the arch of the enactment. Remove the keystone of sanction and the arch crumbles. The conclusion that the Act does not apply to these constitutional functionaries, namely, Judges of the High Courts, Judges of the Supreme Court, the Comptroller and Additor General and the Chief Election Commissioner, need not be viewed with scepticism or treated as their exclusion from the purview of the Act as if they are ordinarily within its ambit. A proper ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce, irrespective of other legal sanction, if any, to punish a corrupt Judge. It cannot be imagined that the framers of the Constitution provided for removal of a superior Judge on lesser grounds of misbehaviour but nor for the gross misbehaviour of corruption. There is no escape from the conclusion that the gross misbehaviour of corruption of a Judge must undoubtedly fall within the ambit or Article 124(5) justifying his removal in the manner provided in Article 124(4). Article 124(5) con- templates a special law enacted by the Parliament even for investigation into any allegation of misbehaviour which must include an allegation of corruption. Can it, therefore, be said that while investigation into the allegation of corruption for the purpose of removal under Article 124(4) needs a special law made by the Parliament under Article 124(5), it is not so for his prosecution which can be made under the provisions of the existing Prevention of Corruption Act? It appears that the framers of the Constitution did not contemplate the need for prosecution of a Judge at that level and expected that a superior Judge would resign if faced with credible material in support of allegations of misb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing legislation cannot apply to them. Such an exercise by the Court does not amount to construing an ambiguous provision to advance the object of its enactment, but would be an act of trenching upon a virgin field of legislation and bringing within the ambit of the existing legislation a category of persons outside it, to whom it was not intended to apply either as initially enacted or when amended later. In this context, it would not be out of place to mention that this unfortunate situation has also another dimension. The framers of the Constitution had visualised that the constitutional scheme for appointment of the superior Judges would ensure that by an honest exercise performed by all the constitutional functionaries of their obligation in the process of appointment of a superior Judge, there would be no occasion to try and punish any appointee to such a high office for an act of corruption. Appointment of superior Judges is from amongst persons of mature age with known background and reputation in the legal profession. By that age the personality is fully developed and the propensities and background of the appointee is well known. The collective wisdom of the constitutio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... expect that the aberrations, if any, in their rank would be subject to the moral and social sanction of their community ensuring that they tread the right path. The social sanction of their own community was visualised as sufficient safeguard with impeachment and removal from office under Article 124(4) being the extreme step needed, if at all. It appears that the social sanction of the community has been waning and inadequate of late. If so, the time for legal sanction being provided may have been reached. No doubt for the judicial community in general it would be a sad day to become suspect needing such a legislation to keep it on the right track. However, that is the price the entire community has to pay if its internal checks in the form of moral and social sanction are found deficient and inadequate to meet the situation which legal sanction alone can prevent. It is for the Parliament to decide whether that stage has reached in the superior judiciary when legal sanction alone can be the remedy for maintenance of public confidence in the integrity of the superior judiciary without which independence of the judiciary would itself be in jeopardy. The view that Judges of the Hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... intment, the salary, pension, leave and removal of the judges. In addition to that, I think it will be desirable to insert a provision under the Act, or to frame statutory rule under the Act, defining the relations between the judiciary and the executive. All communications in respect of the appointments and the grievances, if any, of the judges should come from the Chief Justice of the provincial High Court, through the Governor and not through the Home Department of the province. I recognise that the Governor-General or the President, who will be an elected person, will have to consult the Cabinet according to the Rules of Business framed for working the Central Government. It seems to me, however, fundamentally essential that the High Courts, the Federal Court and the Supreme Court (when established) should not be considered a part of, or working under, any department of the executive Government of India. It should be an independent branch of the Government in touch directly with the GovernorGeneral or the President of the Dominion of India. I am sure the Cabinet will agree to the principle of keeping the judiciary free from the control of the executive. The duty and credit for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le 124(4) was envisaged as the only legal sanction. If this was the expectation of the framers of the Constitution and their vision of the moral fibre in the higher echelons of the judiciary in free India, there is nothing surprising in the omission to bring them within the purview of the Prevention of Corruption Act, 1947, or absence of a similar legislation for them alone. Obviously, this position continued even during the deliberations of the Santhanam Committee which clearly mentioned inits Report submitted in 1964 that it has considered the judiciary outside the ambit of its deliberations. Clearly, it was expected that the higher judiciary whose word would be final in the interpretation of all laws including the Constitution, will be comprised of men leading in the spirit of self-sacrifice concerned more with their obligations than rights, so that there would be no occasion for anyone else to sit in judgment over them. If it is considered that the situation has altered requiring scrutiny of the conduct of even Judges at the highest level and that it is a matter for the Parliament to decide, then the remedy lies in enacting suitable legislation for that purpose providing for sa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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