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Above: President Ram Nath Kovind with Chief Justice of India Dipak Misra; (inset) Justice SN Shukla of the Allahabad High Court/Photo courtesy: PIB and Allahabad High Court

~ By Atul Chandra

With the Chief Justice of India, Justice Dipak Misra, writing to the President of India recommending the sacking of Allahabad High Court’s Justice SN Shukla, all eyes are now on Ram Nath Kovind and the “delinquent” judge.

After being found guilty of misconduct in the private medical colleges admission scam by an in-house three judge inquiry committee, Justice Shukla was given the option of either resigning or seeking retirement. So far his sense of propriety has not advised him to do either.

The in-house inquiry committee gave adverse remarks against Justice Shukla for alleged judicial impropriety in the GCRG Institute of Medical Sciences case.

This was different from the criminal case of Prasad Education Trust in which the CJI had denied the CBI permission to include Justice Shukla’s name in the FIR and in which Justice IM Quddusi, former judge of the Orissa High Court and three others were arrested.

The CBI is reportedly interested in making a fresh effort to seek CJI’s permission to lodge an FIR against the judge who was involved in both the cases regarding the MCI’s order banning admissions. It is unlikely that the CJI will change his stand and Justice Shukla would be relieved that he has only one case to contend with.

The options to either resign or retire were laid before Justice Shukla by the CJI after the inquiry committee comprising Madras High Court Chief Justice Indira Banerjee, Sikkim High Court Chief Justice AK Agnihotri and Madhya Pradesh High Court judge Justice PK Jaiswal found substantive evidence that Justice Shukla permitted private medical colleges to admit students for 2017-18 session in defiance of the restraint order passed by a Bench headed by the CJI himself.

Justice Shukla was heading the division Bench which passed the order in favour of private medical colleges.

As Justice Shukla neither resigned nor did he seek retirement, the CJI advised the Chief Justice of Allahabad High Court not to allocate any work to the judge, who was learnt to have proceeded on 90 days leave in January.

A senior criminal lawyer said that Justice Shukla’s reluctance to resign or seek retirement could be due to the fear of arrest. The moment he ceases to be a judge he will lose the protective cover he enjoys under the Constitution, he explained. This is how Justice IM Quddusi, who was also a former judge of the Allahabad High Court and who also figures prominently in the infamous medical scam, was arrested by the CBI. However with no FIR against him, Justice Shukla has nothing to fear.

The other possible reason for Justice Shukla to continue in office, said a former judge of the Allahabad High Court, could be monetary. Depending on his date of retirement, why would, or should, Justice Shukla lose out on his salary and perks which will add up to a decent sum.

The argument has some merit as Justice Shukla’s retirement is due in 2020, which is over two years away. With the salary of a high court judge now hiked to Rs 2.25 lakh per month retrospectively from 2016 one would need a calculator to come to a rough estimate of what Justice Shukla would lose if he either resigns or seeks retirement. And the amount won’t include his enhanced perks.

“The CJI’s advice is that he should not be assigned any work. So why should he let go of his salary, which would also impact his pension, till the time he is impeached,” the judge asked. He would rather sit in his chamber and wait for the outcome, he pointed out.

The former judge said that it is all about a judge’s honour. So long as Justice Shukla thinks that he is honourable despite his indictment by the panel of judges and hopes that Parliament will vindicate him, his decision to fight it out till the end cannot be contested. If not, then the CJI has already allowed him to make an honourable exit.

As Justice Shukla continues to hold office, impeaching him is the only alternative available to the government. The judge would prefer the long drawn process of impeachment as the probability of the motion falling in the House cannot be ruled out.

The example of Justice V. Ramaswamy, who was the first Supreme Court judge to be impeached, though unsuccessfully, is already there. After a long debate in the Lok Sabha where senior Supreme Court lawyer Kapil Sibal, who is now a Congress leader, stoutly defended Justice Ramaswamy the impeachment motion was put to vote on May 10, 1993. Of the 401 members present in the House, 196 voted for the motion. There were no votes against, but as 205 members of the ruling Congress Party and its allies abstained the motion fell.

For an impeachment motion to succeed, two-thirds of the members of both the Houses present have to vote in its favour. Justice Shukla must be banking on some political party to act as his savior and who knows he might find one.

As the motion fell, Justice Ramaswamy walked out unscathed. Later the vote was challenged in the Supreme Court which decided to go by the verdict of Parliament and that was the end of the story.

But Justice Soumitra Sen of the Calcutta High Court was not so lucky. Justice Sen’s case also gives an idea of how cumbersome and time-consuming is the process of impeachment, at the end of which a judge loses almost nothing except for mention in records that so and so was impeached.

Found guilty of misappropriation of public funds by a committee of three judges, the then CJI K.G Balakrishnan recommended his impeachment to the PM in 2008. Subsequently the Law Ministry sought legal opinion which concurred with the report of the inquiry committee.

After 58 Rajya Sabha MPs moved an impeachment motion against Justice Sen in 2009, House Chairman Hamid Ansari ordered another probe. This time the probe panel had Justice B. Sudershan Reddy of the Supreme Court as chairman. Chief Justice Mukul Mudgal of the Punjab and Haryana High Court and jurist Fali S. Nariman were its members. This inquiry committee also confirmed the charges against Justice Sen.

In the report placed before both the Houses of Parliament, the committee said that Justice Sen was “guilty of misbehavior under Article 124 (4) read with proviso (b) to Article 217 (1) of the Constitution”. When read with proviso (b) to Article 217 (1), Article 124(4) states that a judge of a high court shall not be removed from his office except on the grounds of ‘proved misbehaviour’. ‘Proved’ implies proved to the satisfaction of the required majority of Parliament, if so recommended by the probe panel.

Justice Sen’s impeachment exercise, which began in 2008, ended in August, 2011 with the Rajya Sabha passing the impeachment motion by 189-17 votes. Before the Lok Sabha could take up the motion and complete Justice Sen’s humiliation, the judge resigned on September 1, 2011.

To Justice Sen, therefore, goes the dubious distinction of having been voted out by the Upper House of Parliament. He did not lose his post-retirement benefits, including pension and it is not known if Rs 33, 22, 800 which he embezzled were recovered from him or not.

Going by Justice Sen’s case, Justice Shukla has nothing to be afraid of. Instead of the Prime Minister, as was done in the case of Justice Sen, the CJI has written to the President for sacking Justice Shukla. The President is yet to forward the letter to the law ministry. Also, so far there is no sign of an impeachment motion being brought against Justice Shukla. If the Rajya Sabha Chairman decides to form another inquiry committee, it would give Justice Shukla that much more time.

Depending on whether MPs vote against him or he is able to garner enough support, Justice Shukla has a good chance of relinquishing office without any black spot on his white neck band.

As for the CBI, it can draw consolation from whatever arrests it has made so far.  The story would have been different if the CJI had allowed registering of an FIR against him.

– The writer is a senior journalist based in Lucknow, views expressed are personal.

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