CHIEF JUSTICE OF INDIA ENJOYS NO IMMUNITY FROM PENAL LAWS AND REGISTRATION OF A FIRST INFORMATION REPORT IS IMPERATIVE

Mathews J. Nedumpara

Article 14 of our Constitution states that “The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.” The Constitution does not distinguish between the rich and the poor or the powerful and the meek when it comes to the application of the penal laws e.g. the Chief Justice of India (CJI) and a junior Court Assistant. The Code of Criminal Procedure (Cr. P.C.) and the Indian Penal Code (IPC) apply equally to all, no matter the accused is the CJI or a common man, the complainant victim a Court employee or otherwise. It is difficult to fathom how this cardinal principle could have been forgotten, ignored or bypassed in so far as the allegations of sexual harassment levelled against CJI Ranjan Gogoi.

Articles appearing in the print and electronic media and opinions of very eminent lawyers give an erroneous impression that the CJI enjoys an immunity which an ordinary citizen accused of the very same offence does not enjoy, namely, the offence under Section 354 IPC, as in the instant case. I heard one of the participants in a TV interview saying so. I have heard a very eminent lawyer even observing that in K. Veeraswami v. Union Of India & Ors., (1991) 3 SCC 655, a Constitution Bench of the Supreme Court has in unequivocal terms held that “no criminal case shall be registered under Section 154 of Cr. P.C. against a Judge of the High Court, Chief Justice of the High Court or a Judge of the Supreme Court unless the Chief Justice of India is consulted in the matter”. It is true that in paragraph 16 of the said judgment, Shetty J., speaking for himself and Venkatachalliah J., observed as aforesaid and went on to hold that “If the Chief Justice of India himself is the person against whom the allegations of criminal misconduct are received the Government shall consult any other Judge or Judges of the Supreme Court”. The said view of Justice Shetty found acceptance by Justice Ray. The judgment in K. Veeraswami was rendered in the context of the plea of Justice Veeraswami that the Prevention of Corruption Act, 1947 is not applicable to Judges of High Courts and the Supreme Court and that a Judge is not a public servant. A scenario as in the instant case involving the CJI in an offence of sexual harassment punishable under the IPC did not fall at all for consideration and such a controversy was not present in the minds of the Judges in K. Veeraswami. The judgment in the case of K. Veeraswami, therefore, has no application here.

If it is to be assumed that the Judges who decided K. Veeraswami’s case had in their mind an offence of rape or murder or molestation, which ordinarily no one would expect a Judge of the superior judiciary would ever commit or could be even accused of, then the aforesaid observations are per incuriam and sub-silentio and are in no way binding on any Court or Tribunal in the country, not to speak of the police officer who is duty bound to register a first information report (FIR) when an offence as the one alleged against CJI Ranjan Gogoi is brought to his notice either by a complaint by the victim or otherwise. In K. Veeraswami, the Supreme Court dealt with the need to protect the Judges of the superior Courts from false accusations of corruption. A girl child is not safe in her own home. A sitting Judge of the Kerala High Court was accused of molesting his 3 year old granddaughter. Because of K. Veeraswami, he was not named as an accused; instead the word “grandfather” was used in the FIR in place of the accused. Women, including minor girls, face sexual assault and exploitation in such an alarming scale that the Nirbhaya Amendment became necessary. However, that thousands of men are falsely accused of molestation and rape, that many of them languish in jail for years and, sometimes, even convicted is a fact which could never be denied.

The allegations against CJI Ranjan Gogoi may or may not be true and I wish that it is untrue. Justice Gogoi is entitled to the presumption of innocence. The accusation of sexual harassment against CJI Gogoi is one of the difficult situations one could ever imagine. CJI Gogoi could be innocent and the accusation against him could be false. The opposite also cannot be ruled out. CJI Gogoi, however, acted against all canons of constitutional and penal laws of the country in constituting a Bench to hear the case against himself on the specious ground of threat to the independence of judiciary. Since the allegation constitutes an offence under the IPC, the only authority competent to investigate it is the police. While the judiciary is sovereign in its province, the police too, one must remember, is sovereign in its exclusive province, namely, investigation of crimes. Judges of the Supreme Court have no expertise or experience in investigation of a crime. The In-House Committee is not creation of a statute; it is the creation in the Chief Justices’ Conference; its findings, even if it has observed the principles of natural justice, would have no legal sanctity.

Article 361 of the Constitution provides that no criminal proceedings whatsoever shall be instituted or continued against the President of India, or the Governor of a State, in any court during his term of office and no process for the arrest or imprisonment of the President, or the Governor of a State, shall be issued from any court during his term of office. The Constitution does not extend such immunity to the CJI or Judges of the Supreme Court or High Courts. The judgment in K. Veeraswami can by no stretch of imagination be construed to extend an immunity to them, which the framers of the Constitution did not consider appropriate to confer. The consequence is inevitable; the police is duty bound to register a FIR against CJI Ranjan Gogoi, if we were to be governed by rule of law.

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