A three-member in-house committee headed by Justice S.A. Bobde has been constituted to probe the allegations of sexual misconduct against the Chief Justice of India (CJI) Ranjan Gogoi. This has risen the question of whether the CJI ought to be restrained from exercising his judicial authority till the work of the committee has been completed.

The in-house committee does not enjoy the legitimacy, powers and stature of the Inquiry Committee, to be set up by the speaker of the Lok Sabha or the chairman of the Rajya Sabha under the Judges Inquiry Act.

However, there is nothing preventing the in-house committee or the judge who is facing the allegations from following certain principles laid down in the context of the pendency of proceedings before the Inquiry Committee, set up by the presiding officers of either of the Houses of parliament.

Justice V. Ramaswami case

Justice V. Ramaswami, the then chief justice of the Punjab and Haryana high court, was elevated as the judge of the Supreme Court on October 6, 1989. Charges of financial impropriety had been levied against him by the Comptroller and Auditor General of the state – committed prior to his elevation to the apex court and while functioning as the chief justice in that state.

He was chief justice of the high court for 20 months. It was alleged that he did not account for all the furniture and furnishings supplied by the government. He had replaced superior quality items with inferior ones at the time of handing over possession of the official residence, and that the purchases were shown at inflated prices.

It was also alleged that he had incurred excessive expenses at the cost of the state on account of utilisation of staff cars, consumption of petrol and high telephone bills, presumably because of his son’s marriage in Madras. All the allegations indicated gross impropriety regarding monetary basic instincts, but none mercifully related to any act of judicial dishonesty.

Also read: As Lawyers, We Cannot Accept How CJI Handled Sexual Harassment Allegations

To maintain the unsullied image of the apex court, the then CJI Sabyasachi Mukherjee took the unprecedented step of announcing in open court that the concerned judge against whom charges had been made should proceed on leave till he was cleared of them. The CJI successfully isolated the concerned judge from the rest of the members of the court.

The chief justice was responding to the demands of the legal fraternity. The chief justice of India had also constituted a committee consisting of three of his own colleagues in the court to examine the matters. On its prima facie view, the tentative decision against Ramaswami was reversed. The in-house committee opined in favour of Ramaswami.

But during the interregnum when the in-house committee was examining the allegations, the convention of the judge concerned going on leave was established by the then CJI Mukherjee. This convention has now been reversed by the current CJI, Ranjan Gogoi, as he finds himself an accused before an in-house committee.

A motion for the removal of Justice Ramaswami was initiated in the Lok Sabha with 108 members presenting an address to the president. The motion was defeated in 1993 in the Lok Sabha because the Congress and AIADMK members abstained from voting.

Sub-Committee on Judicial Accountability vs Union of India

In Sub-Committee on Judicial Accountability vs Union of India, a constitution bench on October 29, 1991 – comprising Justices B.C. Ray, L.M. Sharma, M.N. Venkatachaliah, J.S. Verma and S.C. Agrawal – dealt with the question whether during the pendency of the proceedings before the committee set up by the speaker of the Lok Sabha under the Judges Inquiry Act, the concerned judge should be restrained from performing judicial functions and from exercising judicial powers.

Also read: Charge Against CJI Gogoi Should Be Handled Correctly If SC Wants to Keep People’s Faith

The bench held in that judgment that while a direction to the judge facing the allegations to desist from judicial work cannot be granted, propriety and convention would, however, suggest such temporary withdrawal of judicial work during the interregnum – till the allegations are examined by the statutory committee. The bench held in that case as follows:

“It is true that society is entitled to expect the highest and most exacting standards of propriety in judicial conduct, and any conduct which tends to impair public confidence in the efficiency, integrity and impartiality of the court is indeed forbidden. But, the proposition that, apart from the constitutional machinery for removal of a Judge, the judiciary itself has the jurisdiction and in appropriate cases a duty to enquire into the integrity of one of its members and restrain the Judge from exercising judicial functions is beset with grave risks. The court would then indeed be acting as a tribunal for the removal of a Judge and is productive of more problems than it can hope to solve. “The relief of a direction to restrain the Judge from discharging judicial functions cannot be granted…. Since the Constitutional scheme is that the Judge’s conduct cannot be discussed even in the Parliament which is given the substantive power of removal, till the alleged misconduct or incapacity is proved in accordance with the law enacted for this purpose, it is difficult to accept that any such discussion on the conduct of the Judge or any evaluation or inference as to its merit is permissible according to law elsewhere except during investigation before the Inquiry Committee constituted under the statute for this purpose. Therefore, it is difficult to accept that there can be any right in anyone running parallel with the Constitutional scheme for this purpose contained in clauses (4) and (5) of Article 124 read with Article 121. No authority can do what the Constitution by necessary implication forbids. “The question of propriety is, however, different from that of legality. Whether the Judge should continue to function during the intervening period is to be covered by the sense of propriety of the concerned Judge himself and the judicial tradition symbolised by the views of the CJI. It should be expected that the Judge would be guided in such a situation by the advice of the CJI, as a matter of convention, unless he himself decided as an act of propriety to abstain from discharging judicial functions during the interregnum. It is reasonable to assume that the framers of the Constitution had assumed that a desirable convention would be followed by a Judge in that situation which would not require the exercise of a power of suspension. “It would also be reasonable to assume that the CJI is expected to find a desirable solution in such a situation to avoid embarrassment to the concerned Judge and to the Institution in a manner which is conducive to the independence of judiciary and should the CJI be of the view that in the interests of the institution of judiciary, it is desirable for the Judge to abstain from judicial work till the final outcome under Article 124(4), he would advise the Judge accordingly, and the concerned Judge would ordinarily abide by the advice of the CJI. All this is, however, in the sphere of propriety and not a matter of legal authority to permit any court to issue any legal directive to the CJI for this purpose.”

The bench made a clear distinction between the plea for restraining the judge and the expectation that the judge concerned should voluntarily desist from performing judicial work when allegations against him are being examined by the committee set up for the purpose. The bench observed:

“Certain submissions advanced in the prayer seeking to restrain the Judge from functioning till the proceedings of the committee were concluded lacked as much in propriety as in dignity and courtesy with which the Judge is entitled. In the event of the charges being found baseless or insufficient to establish any moral turpitude, the Judge does not suffer irreparably in the very process. The approach should not incur the criticism that it was calculated to expose an able and courteous Judge to public indignity even before the allegations were examined by the forum constitutionally competent to do so. The constitutional protection to Judges is not for their personal benefit; but is one of the means of protecting the judiciary and its independence and is, therefore, in the larger public interest.”

The last sentence in the above passage is prescient in that the CJI Ranjan Gogoi is now facing the criticism of having used the constitutional protection to judges for his personal benefit by constituting a bench comprising himself and two of his chosen judges to sit last Saturday, to defend himself against the allegations levelled by a former employee.

It is, therefore, debatable whether CJI Gogoi has lost the right to “constitutional protection” discussed in the above judgment by virtue of his questionable conduct.

In a sense, CJI Gogoi faces two allegations – one of personal misconduct, unconnected with his judicial work, and the other directly impinging on his judicial competence, as shown by the Saturday hearing by the bench presided by him.

While the S.A. Bobde committee has been entrusted with the task of examining the allegations of sexual misconduct against the CJI, the judicial misconduct evident from the Saturday hearing also needs to be separately probed by an in-house committee to establish his fitness to continue in office as the CJI.