In a medical college bribery case, an advocate claimed that the FIR in the case directly involves the Chief Justice of India (CJI).
The Judge hearing the case however repeatedly stressed that it was contempt to say that the FIR named the CJI.
It becomes imperative, in this context, to understand the various provisions in place for protecting the independence of judiciary.
What are the legal provisions?
FIR - A five-judge Constitution Bench of the Supreme Court had earlier made clear the procedure in registering FIR.
Unless the government first “consults” the CJI, no criminal case shall be registered under Section 154 of the CrPC (an FIR) against a judge or Chief Justice of the HC, or a judge of the SC.
CJI’s assent is imperative as he/she is a “participatory functionary” in the appointment of judges.
If the Chief Justice is of the opinion that it is not a fit case for proceeding under the Act, the case shall not be registered.
If the CJI allows registration of FIR, the government shall, for the second time, consult the CJI on the question of granting sanction for prosecution.
If the CJI himself/herself is the person against whom the allegations are received, the government shall consult any other judge or judges of the Supreme Court.
Notably, the majority in the Constitution Bench classified a judge as a “public servant”.
Arrest - The Supreme Court has also laid down guidelines for the arrest of a judicial officer of the subordinate judiciary.
The court has held that a judicial officer should be arrested for any offence only under intimation to the District Judge or the High Court.
The immediate arrest shall only be a “technical or formal arrest”.
After arrest, it should be immediately communicated to the District and Sessions Judge of the district concerned and the Chief Justice of the HC.
The arrested judicial officer shall not be taken to a police station without the prior orders of the District Judge.
And no statements shall be recorded from him or her except in the presence of a counsel. He or she will also be not handcuffed.
Proceedings - Provisions in Judges (Protection) Act, 1985 protects judges and former judges of the SC and HCs from any civil or criminal proceedings.
This applies for any act, thing or word committed, done or spoken by him/her in the course of their judicial duty or function.
No court shall entertain such complaints.
Section 77 of the Indian Penal Code exempts judges from criminal proceedings for something said or done during judicial duties.
The government can however initiate criminal proceedings against a sitting or former judge of a superior court if it can produce material evidence to show that a judgment was passed after taking a bribe.
