K. VEERASWAMI versus UNION OF INDIA AND OTHERS

2. The expression "public servant" used in the Prevention of Corruption Act, 1947 (hereinafter referred to as the 'Act') is undoub- tedly wide enough to denote every judge, including Judges of the High Court and the Supreme Court. The argument is that in view of the language of the Act considered along with the provisions of the Con- stitution especially Article 124, Section 5 of the Act must be held to be inapplicable to the High Court and Supreme Court Judges. It has not, however, been suggested, and rightly, that the Parliament lacks juris- diction in passing a law for trial and conviction of High Court and Supreme Court Judges in cases where they are guilty of committing criminal offences. The contention is that in view of the scheme of the Act it should be inferred that the penal provisions of the Act do not apply to them. Great reliance has been placed on Section 6, requiring previous sanction of the authority competent to remove-the JUdge from the office as a necessary condition for taking cognizance. It has been urged that in view of this essential requirement it has to be held that the Act does not cover the case of a member of the higher judiciary while in office and consequently it cannot be made applicable to him even after his retirement. For the purpose of this argument it is presumed that there is no authority competent to remove a High Court Judge from his office within the meaning of Section 6, and the condi- tion precedent for starting a prosecution against him, therefore, can- not be satisfied. I do not think this basic assumption is correct. c

3. Section 6(1)(c) of the Act speaks of the "authority competent to remove him from his office". The question is as to whether there is some "authority competent" to remove a High Court Judge from his office or not. An answer in the negative will be inconsistent with Article 124 Clauses 4 and 5 read with Article 218 of the Constitution. It is significant to note that Article 124(4) speaks of "removal from his office", and Section 6 of the Act uses similar language. The removal of a Judge does not take place automatically on commission or omission of a particular act or acts or on fulfilment of certain prescribed condi- tions. It is dependant on certain steps to be taken as mentioned in the Article through human agency. Initially some members of the Parlia- ment have to 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 stn~nuously 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 f person and person as also between person and State itself. To be able to perform its duties effectively the Judges have to act "without fear or favour, affection or ill will". They must, therefore, be free from pres- sure from any quarter. Nobody can deny this basic essence of inde- pendence of judiciary. But for the judiciary to be really effective, the purity in the administration of justice and the confidence of the people in the courts are equally essential. It is to achieve this end that the higher judiciary has been vested with the power to punish for its own contempt. This has become necessary so that an aggrieved or misdi- rected person may not cast aspersions on the court which may adversely affect the public confidence. If the community loses its faith in the courts, their very existence will cease to have any meaning. A H person with a just cause shall not approach the court for a legal .. . K. VEERASWAM! v. U.O:l. [SHARMA, J.] remedy, if according to his belief the decision of the court would lie given on extreneous consideration and not on the merits of his claim. _, People will return to the law of the jungle for settling their dispute on the streets. These aspects are common for the entire judiciary, whether Higher or Subordinate, and to my mind no classification is permissible separating one category from another. …,.

6. Although the Judges of the higher judiciary perform impor- tant functions and are vested with special jurisdiction, .t cannot be forgotten that judicial power, wherever it is vested, is integral and basic for a democratic constitution. A large number of cases are finally decided at the stage of the subordinate judiciary. The subordinate judiciary, therefore, also needs the same independence which is essen- tial for the higher judiciary. It is, therefore, not safe to assume that the Act intended to make in its application any discrimination between the lower and the higher judiciary. Protection to the public servant in general is provided under Article 311 and the interest of the subordi- nate judiciary is further taken care of by the High Court, and this along with the provisions regarding previous sanction shields them from unjustified prosecution. Similarly protection is available to the High Court and Supreme Court Judges through the provisions of Arti- cle 124(4) and (5) of the Constitution. So far this aspect is concerned, the two categories of Judges-High Court and Supreme Court Judges on the one hand and the rest on the other have not been treated by the law differently. There cannot be any rational ground on the basis of wliich a member of a higher judiciary may be allowed to escape prosecution while in identical circumstances a member of the subordi- nate 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 c for an offence under Section 5 on account of the requirement of pre- vious sanction under Section 6, it will follow that he will be immune from' the prosecution not only under Section 5( l)(e) as b the present G 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 sanc- tion. The result will be serious. It is a well established principle that no person is above the law and even a constitutional amendment as con- tained in Article 329 A in the case of the Prime Minister was struck H c I 1991] 3 S.C.R. down in 1976 (2) SCR 347 at 470 C-D. It has to be remembered that in a proceeding under Article 124 a Judge can merely be removed from his office. He cannot be convicted and punished. Let us take a case where there isa positive finding recorded in such a proceeding that the Judge was habitually accepting bribe, and on that ground he is removed from his office. On the argument of Mr. Sibal, the matter will have to be closed with his removal and he will escape the criminal liability and even the ill gotten money would not be confiscated. Let us consider another situation where an abetter is found guilty under Section 165 A of the Indian Penal Code and is convicted. The main culprit, the Judge shall escape on the argument of the appellant. In a civilised society the law cannot be assumed to be leading to such dis- turbing results.

8. In adopting 1:he other view I do not see any difficulty created either by the scheme or the language of the Act or by any constitu- tional provision. The statement in Santhanam Committee's report that the members did not consider judiciary to be included in the tenns of the reference, is not of much help as admittedly the Act applies to the members of the subordinate judiciary. Nor can the rules relating to disclosure by some Govt. servants of their assets and liabilities determine the scope of the law. These rules differ from place to place and are amended from time to time according to the changing exigencies. As has been stated earlier, the power to remove a High E · Court Judge from his office does exist and has to be exercised in appropriate circumstances according to the provisions of Article 124. It is, therefore, not right to say that previous sanction for his prosecu- tion cannot be made available. Section 2 of the Act adopts the defini- tion of "public servant" as given in Section 21 of the Indian Penal Code, which includes "Every Judge". If the legislature had intended to exclude the High Court and Supreme Court Judges from the field of Section 5 of the Act, it could have said so in unambiguous terms instead of adopting the wide meaning of the. expression "public servant" as given in the Indian Penal Code.

9. The further question as to the identity of the authority G empowered to grant the necessary sanction as mentioned in Section 6 of the Act was hotly debated during the hearing of the case. Mr. Justice Shetty has held that since 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 H ·further been observed that the Chief Justice af India will have to be • I K. VEERASWAMI v. U.0.l. [SHARMA, J.) consulted in the matter and steps would have to be taken in accordance. A 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 B appreciate that if the executive follows this rule strictly, a furtht=r pro- tection from harassment of the judges by uncalled for and unjustifie.P 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 I would again state that having c answered the question as to whether a Judge of the superior court can be removed by some authority whoever he or they may be, in the affirmative, it is not necessary to decide the further controversy as mentioned above. I would, therefore, be content mereiy by indicating some of the aspects which may be relevant for the issue, to be decided D later in a case when it directly arises.

11. If the .President is held to be the appropriate authority to grant the sanction without reference to the Parliament, he will be bound by the advice, he receives from the Council of Ministers. This will seriously jeopardise the independence of judiciary which is E undoubtedly a basic feature of the Constitution. Realising the serious implication it was suggested on behalf of the Union of India that this Court may lay down suitable conditions by way of prior approval of the Chief Justice of India for launching a prosecution. I fully appreciate the concern of all of us including the Union of India for arriving at a satisfactory solution of the different problems which are arising, but F if we start supplementing the law as it stands now, we will be encroaching upon the legislative field. To meet this objection it was contended that it is permissible for us to issue the suggested direction because the Chief Justice of India is not a stranger in the matter of appointment of a Judge of the High Court or the Supreme Court; rather he is very much in the picture. Reference was made to the G provisions of Articles 124~1):-and 217( 1). The difficulty in accepting this argument is that the Governor of the State and the Chief Justice of the High Court are as much involved in the matter of appointment of a Judge of the High Cotirt as the Chief Justice of India. We cannot, therefore, simplify the problem by referring to the aforesaid Articles. In my view the approval of Chief Justice of India can be introduced H c [1991) 3 S.C.R. ~s a condition for prosecution only by the Parliament and not by this Court.

12. The question, then, is as to what is the protection available under the law as it exists today, to the independence of the judiciary of the country. The answer is in Section 6 of the Act, which by providing for previous sanction of the authority empo~ered to remove the Judge, takes us to Article 124, Clauses ( 4) and (5). Since the Constitution itself has considered it adequate in the matter of dealing with serious accusations against the Judges by incorporating the provi- sions 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 prohibi- tion 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 sanc- tion 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, unten· able position or an absurd result. It is true that the grant of sanc- tion 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 against the Judge, there should not be any hitch in combining the two matters-that is the removal and the grant of sanction-which are obviously intertwined. It has to be remembered that the prosecution under Section 5( 1) of the Act refers to collection by the Judge of disproportionately large amount of wealth during the period he has been in office. The two matters-the prosecution and removal-should not, therefore , be treated to be separate and unconnected with each other. Otherwise, there will be scope left for the Judge concerned to claim that although he may be facing prosecution or may have been even convicted after trial , he still continues to be a Judge entitled to exercise his powers, as he has not been removed from his office. It was stated during the course of the hearing that actually such a situation has arisen in another country where a Judge although punished with impri.sonment was insisting that he still continued in his office. I do not think that such a thing is permissib_Ie in this country. The anomaly involved in such situations K. VEE~ASWAMI v. U.O.i. (VERMA, J.J can be satisfactoriiy resolved by comolni11g the two rttatters and getting A clearance from the Patliament. Before closing this chapter 1 would again repeat tHat this Issue is ildt atislttg iii the pteserit case and will . fiave lo t5e 1::ohsidered and fiMily decided only when It directly atises. Since, he1~evet. opitiihhc; have iieeii e ~ptesi;;ed, wtiich I regret I do Mt find myself iri a positititi tt) share. i liave, with greatest resjject (jt 111y learned bMthets, take!1 the iitterty to state sdrtte ltnptltHHit considera- D tlons, wlilch appeat to be relevttlit to me .. 14. · Mr. Sibal next contended that as the appellant was not called upon to account fot the ptopetty whidt was found irt his possessicm. one of the essential ingredients under Se1::tiori 5( i)(e) is hot satisfied .. there is no nietit \i.rttatsoever in this f:1tli,~t either. tlie sectloti does hot e contempiate a iititite ttl be setved tlt1 tne accused. If die ptosecutihg authority after tt:Htkittg a soitabie ettquiry; by taking into account the televatit documents and questi(jriittg relevant petsdiis; ,forms the opinion thai the accused cattnm satisfadotliy accdurit the acctmiula- tion of dispropdttionate wealth lri his possession the section is attracted. The records clearly indicate that after duly taking ali the I) appropriate steps it was stated that di~ assets fduhd in the j:lt1ssessioii of the appeiiattt iti kis dWti fiatiie attd irl tke name df itls wife alid fw(j sons; were disproportionate by a sum of dvet Rs.6 iacs to his known Sdt.ttces of income dUting tfie teievatH petiod arid .wliidi lie "catinot satisfactorily act:duht". is. Since I do tit>t find ariy ffietlt lti any of the pofots utged oh· behalf df the appeliattt this appeal is dismissed, VEltMA; J, i have fjetlisetl the dpiriidtts of fuy leatiied brethren constitututing the iiiajority takitig Hie view that the Ptevetttiori of tot ~ . ruptloti Act applies. i artl uttat51e W su!Jsctibe to tfiis vie"', My dissent- fog opinion is at hesf dtily academic, Ali the same 1 deem H fit to tecotd the same with itiy teasc>tis for faklttg a different view. lt is indeed i.uifO'Ttunate tkat fttis qtiestioti slwuld ~H all arise tor judidal detetmihatioti. f-Iowever, tlie questioti havihg ariseri we ate l:iotlfid w gtv1$ o'tit l:Jpinioli. In view Cif the sigttificance of the f>b'ii'it; i tetotd my tespsctfoi dissent reassured oy the ob'serva:tiotls oi 1-lugties th:tt 'unaiti". Q mity tvkidr i~ meteiy fotma:i, whieh is tecotded at the expense of ~ito'tig ; confiktiiig vie«is, is riot desirabie in a court of last . resiJtt; whatevet tnay be the effect dri pui:iiic opinion at the time. This is StJ lJeca:use what mtist uftlmateiy sustain the coi.Jtt in public:: <>dnfidetite is the dfata:ctet a:n'd itidependeike of ftte judges. . . , , . tt Is better ihaf tkelt ltidepeHdettce sh'ould &e tttalttttiined a:nd tecO"gnlsed tlia:n fka:t H (1991] 3 S.C.R. unanimity should be secured through its sacrifice.' I would rather he a conscien~ious lone dissenter than a troubled conformist. It is in this spirit, in all humility, I record my dissent. Can the Chief Justice of a High Court or any of its puisne Judges be prosecuted for an offence punishable under the Prevention of Car· ruption Act, 1947 (hereinafter referred to as 'the Act')? This is the main question a.:ising for decision in this appeal. The appellant, K. Veeraswami, a former Chief Justice of the Madras High Court filed an application under Section 482 of the Code of Criminal Procedure, 1973 (Criminal M.P. No. 265 of 1978) to quash the proceedings in C.C. No. 46 of 1977 in the Court of the Special Judge, Madras, initiated on a C . charge-sheet accusing him of the offence of criminal misconduct under Section 5(1)(e) punishable under Section 5(2) of the Act, as amended by the Amendment Act of 1964. The matter was heard by a full bench of the High Court which dismissed the application by order dated 27.4.1979 according to the majority opinion of Natarajan and Mohan, JJ. while· Balasubrahmanyan, J. dissented. This appeal is by a certifi· cate granted by the High Court under Articles 132(1) and 134(1)(c)'of the Constitution of India in view of the important question of law involved for decision. The material facts are only a few. The appellant joined the Bar of Madras in the year 1941 and had a lucrative practice. In 1953 he was appointed as Assistant Government Pleader and in 1959, the Govero· ment Pleader at Madras. On 20.2.1960, he was elevated to the Bench of the Madras High Court being appointed as a permanent Judge of that Court. On 1.5.1969, he was appointed the Chief Justice of the Madras High Court, from which office he retired on 7.4.1976. On 24.2.1976, the Central Bureau of Investigation at Delhi registered a case against the appellant under the Act and on 28.2.1976, the First Information Report was lodged accusing the appellant of the offence of criminal misconduct under Section 5( l)(e) punishable under Section 5(2) of the Act. A charge-sheet dated 15.12.1977 was filed alleging that between 1.5.1969 and 24.2.1976, while the appellant was a public servant, he was in possession of pecuniary resources and property 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 dispropor· tionate to the extent of Rs.6,41,416.36p. to his known sources of income during that period and that he cannot satisfactorily account for such di~proportionate pecuniary resources and property. The charge· sheet also gave particulars on the basis of which the disproportion in assets was alleged. K. VEERASWAMJ v. U.0.1. [VERMA, J.] 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 charge-sheet, with the result indicated above. Several arguments including the allegation of mala fldes against the Central Government were advanced in the High Court on behalf of ihe appellant. It is, however, unnecessary to refer to all of them since at the hearing of the appeal before us, the appel- lant's case was confined only to the grounds stated hereafter and the ground of mala /ides alleged in the High G:ourt 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 C arguments only. His first contention is that the Judges of the High Courts and the Supreme Court are not within the purview of the Act, which is a special enactment applicable to public servants, in whose case prosecution can be launched after sanction granted under Section 6 of the Act, which is alien to the scheme envisaged for constitutional functionaries like Judges of the High Courts and Supreme Court. He argued that the special provisions in the Constitution of India relating to the Judges of the High Courts and the Supreme Court clearly indi- cate that they are not within the purview of the Act and that after their appointment in the manner prescribed, they are wholly immune from executive influence, their tenure being fixed by the Constitution, except for removal in the manner prescribed by Article 124(4). The other argument of Shri Sibal is that one of the essential ingredients of the offence of criminal misconduct, defined in Section 5( l)(e) of the Act , which is punishable under Section 5(2) thereof, is the inability of the accused to satisfactorily account for possession of disproportionate assets, which must be evident from the documents annexed to the charge-sheet to enable the Special Judge to take cognizance of the offence and this can be possible only if the accused is asked to give his account before filing of the charge-sheet. On this basis, it was argued that the procedure for grant of sanction under Section 6 of the Act which requires the sanctioning authority to sec the explanation of the public servant before granting sanction, makes it feasible, which also shows its inapplicability to the superior Judges, in whose c~e there is G no such ser~ice record or machinery provided. In a way, the second argument of Shri Sibal also is connected with his first argument. St)ri Sibal argµed that irrespective of the desirability of enacting a law providing for the prosecution and trial of superior Judges accused of the offence of criminal misconduct, the existing law contained in the Act is inapplicable to them. In reply, the learned Solicitor General, c [ 1991] 3 S.C.R. who was followed by the learned Additional Solicitor General, stren-u- ously urged that the Judges of the High Courts and the Supreme Court also fall within the purview of the Act being 'public servants', which definition is wide enough to include 'every Judge'. They argued that there is no immunity to the superior 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 superi0r Judges and the special provisions contained in clauses ( 4) and (5) of Article 124 read with Article 218, it was sug- gested, presented no difficulty since the President of India could be treated as the competent authority to grant sanction in accordance with Section 6(i)(c) of the Act in the case of the High Court and Supreme Court Judges. The learned Solicitor General and the Addi- tional 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 sug- gested 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 ensured while treating the superior Judges also within the purview of the Act to enable the prosecution and punishment of the corrupt ones. In view of the great significance of the point involved for decision which has arisen for the first time, the matter was h_eard at consider- able length to illuminate the grey areas. At the hearing the consensus was that, this unfortunate controversy not envisaged earlier, having now arisen, may be, it is time that a clear provision be made within the constitutional scheme to provide for a machinery to deal with the corrupt members of the superior judiciary, which itself is necessary for preservation of the independence of the judiciary. However, the dif- ference is with regard to the adequacy of machinery enacted in the , existing le'gislation for this purpose . In other words, the difference is about the law as it is and not about what it should be. For the purpose of deciding.this case, we have to see the law as it now t:xists. The main point for consideration is whether the Chief Justices and puisne Judges of the High Courts are within the purview of the Act. It is implicit that if the answer is in the affirmative, then the Chief Justice and Judges of the Supreme Court also would fall within the purview of the Act and so also the Comptroller and Auditor Gener? K. VEERASWAM! v. U.0.1. [VERMA, J.J and the Chief Election Commissioner, whose terms and conditions of office <ire the same as those of a Judge of the Supreme Court of Inqia. If for any reason the Comptroller and Auditor General and the Chief f:!ection Commissioner be considered outside the purviel\' of the Ai:;t, that would itself inclicate exclusion of certain similar constitutipnal functionaries from the purview of the Act. The real question, thefe- fore, is: Whether these constitutional functionaries were intende\J tp be included in the qefinition of 'public servant', as defined in the Ac\, and the existing enact\"! law is to that effec\. The desirapility of enact- jng sµch a law applicable to them, it was strenuously t1rged at the hearing, would be a matter primarily for the Parliament to consic:!er in case tqe existing law as enacted does not apply to them. There is no m~t€!rial to indi~ate that corruption in judiciary was a misGhief to be cure\l whe!l the Prevention of Cprrup\ion Act was enacted. For this rps0n, the desirability now expresseq of having such a law cannot be :;ii 9\(1 to constrµ,ction of \he existing law to widen its alT]pjt and bring Hwse rn11stitµtipnal functionaries within it since such an exercise would be wh.plly impermissible in the garb of judicial craftmanship wj1ich caµn0t replace legislation in a vergin field. Judicial activism can supply the deficiencies ind 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 \egislat\ve requirements in the enactment which are wholly ~bsent and with.out which tile answer cannot be 'yes'. I11111y considered view laying (low!l guiqeliµes to be implicitly obeyed, if they.find no place in the existing enactme11t and to bring the superior Judges l\'ithin the Pl!rview of the existing law on that basis, would ampunt to enacting a nel\' law outside the scope of the existing law and not merely constru- ing it by supplying the deficiencies to make it workable for achieving the object of its enactment. It was suggested at the hearing that the guidelirws so suggested and supplied with the aid of whic]J the existing law coulcl be made applicable to superior Judges l\'OUld be akin to the exercis~ performed by this Court while dealing l\'ith the AdministfW t\ve Tripµnals A1:=t in S.P. Sampath Kumar v. Union of India & Or~., i 1987! l SCC 124. I am afraid this analpgy is not apt there being no si111ilarity in the tl\'O situations. The Administrative Tribunals Act ~s enacted was found to suffer from certain infirmities which would render it invaliq ancl thereby failing to achieve the obj~ct of its enaet- ment 4l)less the deficiencies therein were supplied. lt was to overco111e \his si\uatioq th.at this Court in Sampath Kumar suggested w~ys am:! rnec;ns tq ov~rcome those infirmities t.o achieve th~ objel::t of ·~n~~t­ ment of that legislation and thereby make \he legisla\ion work~ble as a c c I 1991] 3 S.C.R. valid piece of legislation. The situation here is entirely different. The Act is wholly workable in its existing form for the public servants within its purview and there is no impediment in its applicability to the large number of public servants who have been dealt with thereunder ever since its enactment. The only question which now arises is: Whether this piece of legislation also applies to certain constitutional functionaries such as the High Court Judges and if the answer is in the negative, the life of the enactment is not jeopardised in any manner. The only result is that in case such a legislation for superior Judges also is considered necessary at this point of time, the Parliament can perform its function by enacting suitable legislation, it being a virgin field of legislation. It is, therefore, difficult to appreciate such an argument when the question for our decision is only of construction of the legislation as enacted to determine the field of its operation. Reference may now be made to certain statutory provisions on the basis of which the point has to be decided. The definition of 'public servant' given in the Act includes 'every Judge'. Sub-section (!) of Section 5 of the Act defines 'criminal misconduct' in its several clauses and Sub-section (2) thereof prescribes punjshment for the offence of criminal misconduct. Section SA deals with investigation into cases under this Act and Sect.ion 6 is the provision for previous sanction necessary for prosecution. Thus, no Court shall take cognizance of an offence punishable under Sub-section (2) of Section 5 of the Act except with the previous sanction of the competent authority envi- saged by clauses (a), (b) and (c) of Sub-section(!) 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 gratifi- cation other than legal remuneration.-(!) Where in any trial of an offence punishable under Section 161 or Section 165 of the Indian Penal Code ( 45 of 1860) or of an offence K. VEERASWAMI v. U.0.1. !VERMA, J.J 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 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 (45 of 1860) or under clause (ii) or sub-section (3) of Section 5 of this Act, it is proved that any gratification (other than legal remu- neration) 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 gratifica- tion or that valuable thing as the case may be as a motive or reward S<,Ich as is mentioned in Section 161 of the Indian Pe.nal Colle or, as the case may be, without consideration or for a consideration which he known to be inadequate. c (3) Notwithstanding anything contained in sub- sections (!) and (2), the court may decline to draw the presumption referred to in either of the said sub-sections if F the gratification or thing aforesaid is, in its opfoion, so trivial that no inference of corruption may fairly be drawn. 5. Criminal misconduct.-(!) A public servant is said to commit the offence of criminal misconduct- (a) if he habitually accepts or obtains or agrees to G accept or attempts to obtain from any person for himself or for any other person, any gratification (other than legal remuneration) as a motive or reward such as is mentioned in Section 161 of the Indian Penal Code (45 of 1860), or f q SUP1'!0ME CQ!JIH REPORTS [19911 3 S.C.R. (b) jf he !Japi\4ally accepts or obtains or agrees to ilccept or attempts to obtajp for himself pr for ;iny other person, ;iny vqlµaple thing witho4t coqsiclera-. \im1 Pf fpr a cpnsic!era\ion which lie knows to be . ioai:!egµale from al!Y person whom he knows tp have been, or tp f)e, or to 6e H~ely to be concerned in any proceeding or p11siness trapsacted or about to be transacteP PY him, or having any co!lnec(ion with the offil;ial f\!nptions of hims.elf or of any public servant \o whom he is sµbor!li!late, or frpm any person who!Jl !ie kl]ows to Pe interes\ed in or related to the person so rnnP~flleP. or (c) if he gis.\wiws\ly Pr frauqµlen!ly misapprppriates Pf pllwrwise cPnver\s for pis own \!se anY prpperty el!trustec! tp him m µni:JH his rnntrnl as ;i pu!Jlic servant Pf allows apy 111lwr Person so to po, of · (d) if he, by ~9.ffupt or illegal me&ns or by otherwise abusing his ppsj\iqp as public servant, obtains for himself or for any other person any valuable thing or pecuniary ac!vantage, or ( e) if lie or aiw perspn on his. behalf is in possession or '1as, at any \im<; !111ring the pniocl of his office, beef! in possession, for which the pµblic servant 9annot satisfaciorily &ccOIJ11!. of Pecµniary resources or prop· nty dispnlportio!la(e to )ljs known soµrces of income. (2) Any public servant who commits criminal mis· pond11ct shall be punishable with imprisonment for a term whkli sliall not be less \haµ one year bµt which may exte11q \o seven years ~n<,I s!iall also b" liable to fine: Provided tltat the court maY, for any special reasons recorded in writing, impose a sentence of imprisonment of less than one year. xxx xxx 5A. Investigation into cases µnder this Act.-( 1) Notwit!istanding anything contained in the Code of Crimi· r t K. VEERASWAMI v. U.0.L [VERMA. J.[ nal Procedure, 1898 (5 of 1898), no police officer below the rank,- (a) in the case of the Delhi Special Police Establish- ment, of an Inspector of Police; (b) in the presidency-towns of Calcutta and Madras, B of an Assistant Commissioner of Police; (c) in the presidency-town of Bombay, of Super>n- –j tendell! of Police; and (ct) elsewhere, of a Deputy Superintendent of Police, c shall investigate any offence punishable under Section 161, Section 165 or Section 165A of the Indian Penal Code ( 45 _of 1860) or under Section 5 of this Act without the order of a Presidency Magistrate or a Magistrate of the first class, as the case may be, 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 Govern- ment in this behalf by general or special order, he may also investigate any such offence without the order of a Presi- dency Magistrate or a Magistrate of the first class, as the case may be, or make arrest therefor wi~hout 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 F Superintendent of Police. (2) If, from information received or otherwise, a police officer has reason to suspect the comn1ission of an offence which, he is empowered to investigate under sub- section ( 1) and considers that for the purpose of investiga- tion or inquiry into such offence, it is necessary to inspect any bankers' books, then, notwithstanding anything con- tained in any law for the time being in force, he may inspect any bankers' books in so far as they relate to the accounts of the person suspected to have committed that offence or of any other person suspected to be holding money on c [ 1991] 3 S.C.R. behalf of such person, and take or cause to be taken certified copies of the relevant entries therefrom, and the bank concerned shall be bound to assist the police officer in the exercise of his powers under this sub-section: Provided that no power under this sub-section in rela- tion to the accounts of any person shall be exercised by a police officer below the rank of Superintendent of Police, unless he is specially authorised in this behalf by a police officer of or above the rank of a Superintendent of Police. Explanation. In this sub-section, the expressions "bank" and "bankers' books" shall have the meanings assigned to them in the Bankers' Books Evidence Act, 1891 (18 of 1891). 6. Previous sanction necessary for prosecution.-(!) 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 sub-section {2) or sub-section (3A) of Section 5 of this Act, alleged to have been committed by a public servant, except with the pre- vious sanction, (a) in the case of a person who is employed in con- nection with the affairs of the Union and is not removable from his office save by or with the sanc- tion of the Central Government, of the Central Government; (b) in the case of a person who is employed in con- nection with the affairs of a State and is not remov- able 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 sub- section (I) should be given by the Central or State Govern- ment or any other authority, such sanction shall be given by that Government or authority which would have been com- … ,) • K. VEERASWAMI 1•. U.0.I. [VERMA, J.[ petent to remove the public servant from his office at the time when the offence was alleged to have been committed." The relevant provisions of the Constitution of India are as under: "121. Restriction on discussion in Parliament.-No discus- sion shall take place in Parliament with respect to the con- duct 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. xxx xxx xxx 124. Establishment and constitution of Supreme Court.-(!) ……. 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 sup- ported by a majority of the total membership of that House c and by a majority of not less than two-thirds of the mem- bers 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 148. Comptroller and Auditor-General of India.- (I) There shall be a Comptroller and Auditor-General of India who shall be appointed by the President by warrant under his hand and seal and shall only be removed from office in like manner and on the like grounds as a Judge of the Supreme Court. xxx xxx xxx c 211. Restriction on discussion in the Legislature.- No discussion shall take place in the Legislature of a State with respect to the conduct of any Judge of the Supreme Court or of a High Court in the discharge of his duties. xxx xxx xxx 218. Application of certain prov1s10ns 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 sub-titution of reference to the High Court for refe- rences to the Supreme Court. xxx xxx xxx 324. Superintendence, direction and control of elec- tions to be vested in an Election Commission.-( 1) – xxx xxx xxx (5) Subject to the prov1s1ons of any law made by Parliament, the conditions of service and tenure of office of the Election Commissions and the Regional Commission- ers 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 Commis- sioner shall not be varied to his disadvantage after his appointment: Provided further that any other Election Commis- sioner or a Regional Commissioner 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 .. , K. VEERASWAMI v. U.0.1. [VERMA. J.[ 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 couduct 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 r.estricting the right of any person to bring appropriate proceeding~ against the Government of India or the Government of a State. (2) No criminal proceedings whatsoever shall be instituted or continued against the President, or the Government of a State, in any court during his term of office. (3) No process for the arrest or imprisonment of the President, or the Governor of a State, shall issue from any court during his term of office. ( 4) No civil proceedings ir. which relief is claimed against the President, or the Governor of a State, shall be instituted during his term of office in any court in respect of any act done or purporting to be done by him in his personal capacity, whether before or after he entered upon c his office as President, or as Governor of such State, until the expiration of two months next after notice in writing has been delivered to the President or the Governor, as the case may be, or left at his office stating the nature of the proceedings, the cause of action therefore, the name, des2ription and place of residence of the party by whom such proceedings ·are to be instituted and the relief which he claims." It may also be mentioned that the Judges (Inquiry) Act, 1968 has been enacted by the Parliament to regulate the procedure for the investigation and proof of the misbehaviour or incapacity of a Judge of the Supreme Court or of a High Court and for the presentation of an c address by Parliament to the President and for matters connected therewith, as contemplated by Articles 124(5) of the Constitution of India. It is in the background of these provisions that the point arising for our determination has to be decided. I may also at this stage refer to the recommendations made by the Santhanam Committee which preceded the 1964 amendment in the Act. It is as a result of the 1964 amendment that clause (e) was inserted in Sub-section (1) of Section 5 of the Act to make the possession of disproportionate assets by a public servant by itself a substantive offence of criminal misconduct, while prior to this amendment such a provision was merely a rule of evidence contained in Sub-section (3) of Section 5 as initially enacted which was then available only to prove the offence of criminal misconduct defined in clauses (a) to (d) of Sub-section ( 1) of Section 5. In the Report of the Santhanam Commit- tee, certain portions relating to the judiciary which may 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 n1ind, however, that all courts in india are com- mon to the Centre and the States and can entertain and decide cases relating to exclusively Central subjects. There- fore, 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 K. VEERASWAMI v. U.0.1. [VERMA, J.] of the High Courts should arrange for a thorough inquiry into the incidence of corruption among the judiciary, and evolve, in consultation with the Central and State Govern- ments, proper measures to prevent and eliminate it. Perhaps the setting up of vigilance organisation under the direct con- trol of the Chief Justice of every High Court coordinated by a Central Vigilance Officer under the Chief Justice of India may prove to be an appropriate method. xxx xxx xxx SUMMARY OF CONCLUSIONS AND RECOMMENDATIONS xxx xxx xxx c 117. The Chief Justice of India in consultation with the Chief Justices of the High Courts should arrange for a thorough inquiry into the incidence of corruption, among the judiciary, and evolve, in consultatipn .with the Central and State Governments, proper measures to prevent and eliminate it. Perhaps the setting up of vigilance organisa- tions under the direct control of the Chief Justice of every High Court coordinated by a Central Vigilance Officer under the Chief Justice of India may prove to be an appropriate method. (Para. 12.2) xxx xxx xxx REPORT ON THE GOVERNMENT SERVANTS' CONDUCT RULES xxx xxx xxx Rule 15 15. The Committee attaches great importance to the changes recommended in the existing Rule 15 relating to the acquisition and disposal of property by Government ser- vants. On the one hand, these reports serve as a check against corruption and on the other, it may be irritating to honest Government servants to be subject to restrictions c I 1991] 3 S.C.R. not imposed on other citizens. It is also necessary to ensure that the reports are such as to serve the purpose for which they are obtained. Further, no reports need be obtained from those Government servants who have no opportunity to enrich themselves by unlawful means. 16. The most important change made by the Com- mittee in this rule is the replacement of the annual immov- able property return by a complete periodical statement of assets and liabilities. In the circumstances now obtaining in the country, the immovable property return has ceased to have much significance. The Committee considers that in order to enable Government to ascertain. whether any Government servant is in possession of assets disproportio- nate to his known sources of income or whether he is run- ning into debt, it is necessary that the Government servant should furnish a complete statement of his assets and liabilities periodically. 17. 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 immovahle property and all transactions in movable property exceeding a specified value. The Com- mittee 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 innumer- able small transactions taking place continually. But as these small transactions may cumulatively be sizable and have a big effect on his financial position, the purpose will K. VEERASWAMI v. U.0.1. [VERMA. J.] be served only by obtaining a periodical balance-sheet. The Committee, however, considers that the reports need not be frequent and that it may perhaps be sufficient if they are submitted once in five years . 19. Another point that was considered by the Com- mittee was whether jewellery should be included within the definition of movable property. The Committee recognises that inclusion of jewellery may be considered to be an unnecessary intrusion into the private affairs of a Govern- ment servant. But jewellery constitute important assets and if excluded from the definition of movable property, the balance-sheet submitted by the Government servant may c not set out the true picture." (emphasis supplied) In view of the decision by a Constitution Bench in R.S. Nayak v. A.R. Antulay, [ 1984] 2 SCC 183 the correctness of which was not disputed before us, we have to assume for the purpose of this case that no sanction under Section 6 of the Act was required for prosecution of the appellant since cognizance of the offence was taken after the appellant ceased to hold the office of Chief Justice on 7.4.1976 on hiv retirement. It was, however; contended that. for the purpose of dccid- ing the question of applicability of the Act to the appellant as a Judge or Chief Justice of the High Court, the office with reference to which the offence under the Act is alleged to have been committed, it is necessary to cbnsider the feasibility of grant of sanction under Section 6 of the Act for prosecution of a person holding such an office. In other words, the argument is that notwithstanding the fact that no sanction was required for prosecution of the appellant after his retirement, the need and feasibility of grant of the sanction under Section 6 of the Act if he was prosecuted before his retirement is the test to determine the applicability of the Act to a person holding, the office of a Judge or Chief Justice of a High Court. It is argued that if the grant of sanction unde.r Section 6 of the Act for prosecution of the incumbent for the offence is not feasible or envisaged, the clear indication is that holder of such office does not fall within the purview of the Act. The question of grant of sanction under Section 6 for the prosecution of a Judge or Chief Justice of a High Court for an offence punishable under Section 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 cxhaus- t SUPRIOMI: cdlJii.t RE:PORts [i991J 3 s.c.R.. Hveiy provide f& ih,y sompeieni authority to grant sanction fot prd- secutiorl iii case of all the public servants falling within the plirview of the Ad. ActiiHHediy, sUdi previt>us saridiori is a cciridilioll pfecedent Im t:ikiHg cognifailce cif ah offence ptlitisHable undet die Ad; .Of a 6tililic ~erhiilt who is prosecuted dUHng his coniinuailce ih tHe office. H follows thai ihe public servant falling within the purview tit the Aci ffiiJsi invariably fall wlthiii ori~ dHHe three clauses in Sub-sedion (i) ,of Seetioi! 6. Ii follows that \he Holder of an oflice, eveti ihoilgli a 'piltilic servant' attbrtliilg to the definitiOil in the Act, who does not fall within any tlf ille dalises (a), (bj or tel df ~uli-seclioh ( 1) df SettidH 6 mUst be held it> be dtiiside th~ purview of the Ad sirlce ihis special enattme.tit was ncli. enilded io cover that category df public servants iiispite of the Mae tlefiBilioi\ of 'pl\Blk ~er\>ahi' m ilie Aci: this is Ifie tirtly tii:Hiher in \Vf\idi ihese provifains of ihe At! blli oe harmonized attd giverl nitl feffed. tile sctteme o'f tke Ati is iliat a t:hi&i1c setvaiii who cmiirllits iHe offerlce of tHiliH\al i\iisctH\dlict; as defined irl \he several ciaUses of Sub'sectibh ( l) df Sedioli 5; can be puilislied in acccirdarice with Sub- seclioh t2J of SedMl:l 5, aher iilvesiigatioii of itte offence in tHe iiiahiier prescribed and Wilk tHe previous sanctiort of the competent auihoriiy obtained uridet Section 6 of the Act, iti a trial conducted acco\-tlii\g to the prescribed procedure. The grant of previous sanction under Section 6 being a condition precedent for the prosecution of a pul)lic servant covered by the Act, it inust follow that .the holder of an l:lffice \vhd may be a public servaHi accordihg to the wide definition of E \he expression ill ihe Aci but \Vhose category for the grani of sahctiort fur p\-osecUiitlii is not envisaged oy Set\ion 6 of the Aci, is l:llllside ihe purview of itte Act, ndt ihtended td be covered by the Act. this is the only inatllie\- irt which ~ foii-'mtihious consti\utioh di tlie provisions of ihe Ati tail be mad!! for Hie plirpose of achieving the object ot iiiat enatHllerlL Tttis appears lb be tHe obvious concltisibh evert for a case like the preserlt where rid siicfi sanction for prosecution is necessary oh the view. taken ih Anru/ay, anti not challenged before US, that the sarldibn fdt prbseclliion under SediOh 6 is riot necessary \vheti cogni- faitce of the offertce is taken after the accused has teased tb hoh:J the office ih <JUestiotL In this cbritexi, ii is useful to recail the analysis of Section 6 made in R.S. Nayak v. A.R: Anirtlay, [1984] 2 SCC 183, which is as tlilder: "i'JffH\ce!- p'tescrived in Sections 16 i, 164 and 16) 1i>t: and SedioH ~'Of ihe 1947 Act h~ve aii intimate and iilsejMrable relaill:lii with the office 'Of a public servant: A public servant dcd1'pies office which renders him a 'public se\-'vani and K. VEERASWAMi v. U.O.i. [VER.MA, i.l occupying the office carries wJth it the powers conferred <1li the office: Power generally is not conferred on ati inditi· dual person. In a society governed by rule of law powet is conferred on office or acquired by statotory status atid the individual occupying the office or oii whom status is cotifor·· red en joys the power of office or power flowing frorn the status. The holder of the office alone would have OJif:lcJf• !unity to abuse or misuse the office. These sectiotts codify a well-recognised truism that powet has the tendensy to s(Jf• rupt. ft is the lw/dihg of the office which gives an oppot• tunity to use ii for corrupt motives. Therefote, the CoftUPI conduct is directly attributable and flows from the power conferred on the office. The interrelation and itiletde· pendence between individual and the office he holds is sub· stantial and not severable. Each of the three clauses of sub· section ( 1) bf Section 6 uses the expression 'offta' and the power to graht sanction is conferred on the authority compe· tent to remove the public servant from his office and 8<1tllcJh 6 requires a sanction before taking cognizance of offettces committed by public servant. The offence would be comliiit• led by the public servallt by misusing or abusing the power of office and it is from that office, the authority must be CO/ii• petent to remove him so as to be entitled to grant santtlo/t, The removal would bring about cessation of interrelatltJh be tweer! the office and abuse by the holder of the offke, The iihk between power with opportunity to abuse and th~ holder of office would be severed by tenioval ftoni Dffke, Therefore, when a public servant is accused of art Dffettce of taking gratification other then legal remuheration ftlt doing or forebearihg to do ati official act (Section i61 (ll'C) or as a public servant abets offertces punishable under Sections 161 ahd 163 (Section 164 !PC) or as public servant obtains a valuable thing without consideration from pet•tlM concerned in any proceeding or business trartsacted by such public servant (Section 165 !PC) or commits criminal mis· conduct as defined in Section 5 of the 1947 Act, it is tmplldt in the various offences that the public servant has misused Of abused 'the power of office held by him as public serVflltt, The expression 'office' in the three sub-Clauses tlf Settltln 6( 1) would dearly denote that office which the publit servant misused ot abused for cothipt motives for which h~ is to be prosecuted and in respect of which a santtkrn to orosecute him is necessary by the competent authority SUPREME COCRT REPORTS I 1991] 3 S.C.R. entitled to remove him from that office which he has abused. This inlerrelation between the office and its abuse if severed would render Section 6 devoid of any meaning. And lo this interrelation clearly provides a clue to the understanding of the provision in Section 6 providing for sanction by a competent authority who would be able to judge the action of the public servant pefore removing the bar, by granting sanction, to the taking of the cognizance of offences by the court against the public servant. Therefore, it unquestion- ably follows that the sanction to prosecute can be given by an authority competent to remove the public servant from the office which he has misused. or abused because that c authority alone would be able to know whether there has been a misuse or abuse of the office by the public servant and not some rank outsider. By a catena of decisions, it has 0een held that the .authority entitled to grant sanction must apply its mind to thfi facts of the case, evidence collected and other incidental facts before according sanction. A grant of sanction is not an idle formality but a solemn and sacrosanct act which removes the umbrella of protection of Govern- ment servants against frivolous prosecutions and the afme- said requirements must therefore, be strictly complied with before any prosecution could be launched against public servants. (See Mohd. Iqbal Ahmad v. State of A.P., [1979] 2 SCR 1007: [197914 sec 172: 11979) sec (Cri.) 926: AIR 1979 SC 677). The Legislature advisedly conferred power on the authority competent to remove the public servant from the office to grant sanction for the obvious reason that that authority aione would be able, when facts and evidence are placed before him, to judge whether a serious offence is committed or the prosecution is either frivolous or specula- tive. 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 confer- red 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 competenr 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 bet- ween the authority competent to remove the public servant from that office and the nature of the office held by the K. VEERASWAMI v. U.0.J. [VERMA. J.l public servant against whom sanction is sought which would A indicate a hierarchy and which would therefore, per>nit inference of knowledge about the functions and auties 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 t~ remove the public servant against whom sane- tion is sought from the office." (emphasis supplied) (para 23, pp. 204-206) It is significarii from the above extract in Antulay that for the purpose of grant of sanction under Section 6 of the Act to prosecute the public servant, a 'vertical hierarchy between the authority compe- tent to remove the public servant from that office and the nature of the office held by the public servant against whom sanction is sought' is clearly envisaged and, therefore, the authority competent to remove the public servant from that office should be vertically superior in the hierarchy in which the office exists having the competence to judge the, D action of the public servant before removing the bar by granting sanc- tion. In other words, Section 6 applies only in cases where there is a vertical hierarchy of public offices and the public servant against whom sanction is sought is under the sanctioning authority in that hierarchy. It would follow that where the office held by the public servant is not a part of a vertical hierarchy in which there is an authority above the public'1~rvant in that hierarchy, by the very scheme of Section 6 it can have no application and holder of such office who does not have any vertical superior above him in the absence of any such hierarchy can- not be within the ambit of the enactment, the Act not being envisaged or enacted for holder of such public office. The decisions of this Court hav.e unequivocally held that a Judge or Chief Justice of a High Court F is a constitutional functionary, even though he holds a public office and in that sense, may be included in the wide definition of 'public servant'. It is for this reason that the learned Solicitor General did not place reliance on clauses (a) and (b) of Sub-section (I) of Section 6 in the present case but relied on clause (c) thereof, to contend that sanc- tion thereunder can be obtained for the prosecution of a Judge or G Chief Justice of a High Court since the holder of such an office can be removed from office by the President in accordance with clause (4) of Article 124 of the Constitution. This is the only argument for this purpose and, therefore, its tenability has to be tested. Section 6(1)(c) provides for previous sanction 'in the case of any zoo 1 )9911 3 s.c.~. pther. person, of the authority competent to remove him from his pffice'. Clauses ( 4) and (5) of Article 124 which apply to a Judge of tJ)e 5upreme Court are made applicable to Judges of the High Courts h¥ ¥irJue of Article 218. Tlhese may be re-quoted here for ready- f.. f.!~ference: "124. Establishment and constitution of Supreme Court.- (!) … xxx xxx ( 4) A Judge of the Supreme 'Court sJ)all not bl' removed from his office except by an order of tl)_e l'r.esjdel!l passed after an address by each House of Pafliam.em supported by a majority of the total membership of dw House and by a majority of not less than two-thirds of the members of that House present and voting has .b.een pre- sented to the President in the same session for such re- moval on the ground of proved misbehaviour or incapacit¥. ( 5) Parliament may by law regulate the procedure for the presentation of an address and for the investigation al\<! proof of the misbehaviour or incapacity of a Judge U!\d.er clause (4). xxx xxx Xl<X 218. Application of certain prov1s1ons relating to Supreme Court to High Courts.-The provisions of clau~ { 4) and ( 5) of Article 124 shal) .apply i.o relation to a H.igl) Court as they apply i£J relation io the .Supreme O:mr,t .w~t;h the -substitution of references to -the High Court ~or r,efe- .rences to the Supreme Court." According to Article 124(4), a Judge can be removed from his .ef:tice by an order of the President passed after an address by earn ~ U-0:use of Parliament supported by the prescribed majority on ,the g{PW:\d of proved misbehaviour or inq1pacity. Since the ocder l'f '~ya! in such a case is to be made by the President, the 1.e..-Be<d 5.olicito.r General contended that the competent authority to remo:v.e s.,1:1,<W ? J,udge as required by Section 6( 1 )( c) is the President and it ~s ;i,a tt;b.is manner tllat Se.ction 6(l)(c) is attracte.d. The qu.estion js wl).etl)_ef H mis ,ar.gumeot is tenable. 1'hf'f!' ~H' sf'Yf'ra! f~!l~fi!'s iP this ~rnllffit!1!: §!'EliPl1 pf nc~l . A we~ks of ·~u\liprjty F0Il1P!'t~nt to r~rnoyf'' \Vhich p]~inly iJ]gi~~t~s !h~ ' subst~l]tiy~ rnil1P.nf'nFe ()f the ei+thprity to rell1ciye, not Il1ere\y !h~ procedur~! or formal p~f! of it. fn ot!J!"r \Vor~s, tne ~\ll!JPri!Y ·iise\f ~houkl be comfl~l~P! fr> remove or the on~ to decide the ~u!'st\op of r~moval ano np\: q~ '!"hi~b merely pbeys -ff implemf'nts \he flef\siP!' gf some other authority. This conclusion is reinforced by the above a qtract from the Antulay decision, wqich speaks of the vertical !iierarchy between tile authority competent to remove the public servant and the nature of the office held by the public servant ircticat- ing that the removing 3uthority should have the competence to take a -c f!ecision on the ~aterial plap,.i:I pefore it far )he purpo;e pf 'cJ!'d4fog whe\h~r the pub)ic sen•ant agai11s! WhC)Il1 5anctio11 is sough\, !J~s lJ~eiJ c .. · prima fac;e guilty of flbUsf' pf !Ji~ pffj~e s[> thfll \here is C)ff~Sipp )() l:Jring flbout cessation of interrelatio.1 between the office an>! ~l:Juse by \he holder of the office by his remcval therefrom. Obviqi+sly, th~ compet!'nt sanctioning aµthority envisaged thereby is a vertical superior in the hierarchy having some power of superintendence over the functioning of tile public servant. Where no such relatiRnsrip e:i<ists in the absence of ~ny vertic.~l hierarchy and the hplqer of t!i~ _. public .offic.e is a constitutionfll ful)f!ionary not subject t0 ppwer pf superintenc!ence of ary superior, Section 6 can have no application by .yirtue of the scheme engrafted therein. The expression :authority cOIT!petent to remove' under Sectipn 6( l)(c), unless consfn1ed in this l)lanp~r, will foul \Vith the .constf!'f!iP!l m~fle on Section ~ ~Jld ifs F Sfh.eme in the Antu/ay ~!'cision. l'! S.P. Gupta & Ors. etc. efc. y. [Jriion ()f lnrfip ff< (.?rs. etr:. ~tr:,, I ~9&2] 'f SCR }65 it was ~l~~rly pciintef! put that a High Calif! !!!f!ge is ~ high constitutional functionary and while dealing with th~ 9!!~~fi8ll pf th~ machinery h~ving legal sanctiqp ta e~al with a High !JqHff Jp~ge F agai!'sl whom allegations of lack pf fntergrity and corryptiqn >yere made, it was st~ted as un~er: " …… Baldly put, the question is: Shoulp an Addi- tional Judg~ whose misbehaviour or lack of integrity h~s come to the fore he continued as an Additional Judge or p confirmed as a Permane~t Judge? The ~nswer at the first impulse and rightly wmild be in the negative but the gpes- tion requir~s deeper co~~ideration. If th~ mi~be~ayio:Ur pr la~k of integrity is glaringly self-evident the que~tion of l)is continua11c~ ~bviously can~pt ~rise 11ng in all probabilities will not engage the attention of the appointil)g 9u1hority, SCPREME COURT REPORTS I 19911 3 S.C.R. 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 concerned Additional Judge should be dropped merely on opinion material or concrete facts and material in regard to allegations of misbehaviour and/or lack of integrity should be insisted upon? In my view since the question relates to the continuance of a high constitutional functionary like ,.._ c the Additional Judge of High Court it would be jcopardis- ing his security and judicial independence if action is taken on the basis of merely opinion material. Moreover, no machinery having legal sanction behind it for holding an inquiry-disciplinary or otherwise against the concerned Judge on allegations of misbehaviour and or lack of inte- grity obtains in the Constitution or any law made by the Parliament, save and except the regular process of removal indicated in Art. 124(4) and (5) read with Art. 218 and the ·- Judges (Inquiry) Act, 1968. Therefore, the important ques- tion that arises in such cases of suspected misbehaviour and/or reported lack of integrity is who will decide and how whether the concerned Judge has in fact indulged in any misbehaviour or act of corruption? In the absence of satisfactory machinery possessing legal sanction to reach a positive conclusion on the alleged misbehaviour or an act .. of corruption the decision to drop him shall have been arrived at merely on the basis-of opinions, reports, rumours or gossip and apart from being unfair and unjust to him such a course will amount to striking at the ruot of judicial independence. The other alternative, namely, to continue him as an Additional Judge for another term or to make him permanent if a vacancy is available and then take action for his removal under the regular process indicated in Art. 124(4) and (5) read with Art. 218 and Judges (inquiry) Act, 1968 may sound absurd but must be held to be inevitable if judicial independence, a cardinal faith of our Constitution, is to be preserved and safeguarded. Not to have a corrupt Judge or a Judge who has misbehaved is unquestionably in public interest but at the same time preserving judicial inde- pendence is of the highest public interest. It is a question of K. VEERASWAM! v. U.O.!. [VERMA, .I.] choosing the lesser evil and in inevitable course has to· be adopted not for the protection of the corrupt or dishonest judge but for protecting several other honest, conscientious and hard-working Judges by preserving their independence; it is a price which the Society has to pay to avoid the greater evil 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) sho.uld not be invoked-at least until such time as proper machi- nery possessing legal sanction is provided for enabling a proper inquiry against an alleged errant Judge less cumber- some than the near impeachment process contemplated by Art. 124( 4) and (5) of the Constitution." c (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 taking cognizance of them and acting on them . …… " (Venkataramiah, J.) (pp. 1338-39) (emphasis supplied) Even though the above observations were made in the context of continuance in office of Additional Judge of the High Court and the transfer of Judges to another High Court, yet the nature of office of a G High Court Judge and the only legal sanction available under the existing law to deal with them even in the event of allegations of corruption was clearly spelt out. It was pointed out that ordinarily such a person faced with cogent material against him would resign, but in case he does :iot, the only remedy available is his removal from office in accordance with clauses ( 4) and (5) of Article 124 read with Article p SURjlE~E COURT REPORTS 21~ of the Constitution till a suitable provision with legal s~ncti.on is made. It was also pointed out that the object served in this manner was the greater public interest to preserve independence of judiciary and not to protect the corrupt Judge who was an exception. The scheme of th' ei,:i5ting law to deal with such situations was considered at length 11nd it was also held that even the power to transfer under Article 222 of the Constitution to another High Court could not be exercised for these reasons. In this context, clause (5) of Article 124 is also of considerable significance. The construction made of the provisions of the Act must .also fit in with the scheme of clauses (4) and (5) of Article 124 read with Article 218 of the Constitution in order (o present a harmq!)io1:1s s~heme. Clause (5) of Article 124 enables enactment of~ 5peFi~l law by the Parliament to regulate the procedure for present~tion of an address and for the 'investigation' and 'proof' of the 'misbehayiour' or inc.apacity of a Judge under clause (4). It is in exercise of this power !hilt the Parliament has .enacted the Judges (Inquiry) Act, 1968. It is significant that clause (5) of Article 124 covers t!>e field of 'investiga- tion' ap,d 'proof' of the 'misbehaviour' of a Judge. Th're can be no doubt that the expression 'misbehaviour' is of wide irnport and inclu~es within its ambit criminal misconduct as defined in Sub-section ( 1) of Section 5 of the Act as also lesser misconduct of a Juqge falling short of criminal misconcjuct. The special law envisaged by Article 124(5) for dealing with tl)e misbehaviour of a Judge covers tile field o.f 'investigation' and 'proof' of the 'misbehaviour' and the onl¥ punish- ment provided is by Article 124(4) of removal from office. There is no escape from the cooclusion that Article 124(5) is wide enough to include within its ambit every conduct of a Judge amounting to misbe- hayiour including criminal rnis~onctuct and prescribes the procedure for investig'!tion aQd proof thereqf. Thus, even for the procedure for investigatfon in~o any misbehaviour of a Judge as well as its proof, a I.aw enact)'d by the Parliam.ent under Article 124(5) is envis.aged in the F.onstitutional scheme. Such a law in the form of the Judges (Inquiry) Act, 1968 ancj the rules framed thereunder has been enacted. These pr.ovisions )Vere made in the Constitution and the law thereunder enac- ted when the Prevention of Corruption Act, 1947 was in the Statute J39ok. Tile prior enactment and existence of the Prevention .of Corrup- ti.on Act, 1947 at th.e time then clause ( 4) and (5) of Article 124 of the CottStitution were framed, does indicate the constitutional scheme that .a separate parli.amentary law to deal with the investigation and prqof pf misbehavio.ur of a Judge was clearly contemplated by providing .a H special machinery for this category of constitutional functionaries 29;; 11otwiths(a1Jpi11g the general h1w available :in!! applif:aple to the pµb)i~ servants in general, wllich inclµ<!ec! the 1'reventi9n of Corruption A Act, 1947. JI special provisions in th.e tw111 of ~lauses {4) al)P (5) of Article 124 and Artide 218 of the Constitution anp the special eµact- 111ent by t.h.e Parlia111ent under Ar!icle 124(5) were provided in tJ1e .constitutional scheme for Judges of the tfigh Courts and the Suprem.e Court, there can be no valid reason to hold that they are governed by _ij the gener.al provisi.ons in addition t,0 th.ese special provisions .enacti:d only for them. The need for these special provisions Is a clear pointer ill (he direction .of inappli_cability to them .of the general provisions applic.ab)e to the public servan(s h.olding otl)er public offices, n.ot .as ,consti(u(~Ollal fµl).f'#Offafies. C.onstf!lciion pf Sef:)ioll 60)(,c) pql)e ACt as sµggest._e.d b¥ ~Ji.e Ji<.amM Spli.ciwr Oeµ,eral 1:!¥ treatiµg the l'resipen.1 e as m~·fflmPeten! a.11tl1Prity ~o r.emove a High Cpµrt Jupge woµJ4 ,011f- lict wi!IJ the prPvisipµs enacte.d in ,cl<tuses (4) .and (S) of 1\r(~cle 12f read wit!) Arlicle 2 i8 ,of 1i)e Consti!11tipJl. SµcJ1 a construction IJas undoubtedly to be ;ivoiqeij. This is more so, since the reje.ctiol) .of sµc)i .an argument .would npt ip any mal)p,er jeopardis.e the provisiolJS pf the Act as it would r~11lt ,oµly in tli,e failµre cif th.e attempt to bring ti:),e .constitµtion.:il fµn.eti.on,ari.es sµch as Jgdges of the High ~.oµrts and .th,e Supreme C.ourt within 1the pµryiew of that Act, while the A~t would i::on~i11µ.e tp appl¥ (o tlll' p~lif sl'f¥.ants in l'eneral w/.J.p fall will)in the ~.ell).e ,of Se.c.tie11 f:i .of tli.e A.ct (or tl)e pµrpose pf graM .ol' pri;vio.us sa11ct~o11 for prose,cµtipn -whirzl! is ii ,com;li!~on pre!'<'.dem for .Cf>g!/iPmce of a11 pl{en;;e pm:iis.hab~e .,ull.<!ler !PW A..ct· 13- It qn als.o not b.e oyerioo:ked 1t/la( .the Sa'llh.al).am -!=ommi.tt.e.e ~p,ort ,did not i::o11.sider ~he i.u.<!~ciar¥ within its purvi,ew 1tn,d it mer.e!r mad.e i::er:u,1.jn recommm.<:ta!i-.ons to .devise a m:;i.1>hiner¥ ipyplving t!he QAef Jµsti!'e pf in di, a ttO ,d,e,a,l ,w~th ,tl\e ,cas.!'s .Of ,erran; Jµ_cjges. The W64 11m_en.dment m,(lde iii !he ~!':I IWf'i##lll :to ffl,e rewmmel\illl.tipns of tl).e f S.an(l;I<LOam Co.mmittee ,did ..iot m.;i:Ke <LOY ,amell,dmel){ in tll.e AP tg jnpicate that Jµdges .of 1lt1.e ffigh ~:-1wr1s <LOd the Suprem,e ·~Ol)fl "fer!' also brought ;w.ivhi)l ,t);ie p,uwi"'w pf :t~e A.ct. ~t w.as -there.after -that ·tl!,e J,uc;lges (Inquiry) Act, [~63 an,d th.e r.ules fram,ed th,er.eul1d.er .we.re epac,t.ed to pr.oyide for 1tb..e inyestigation al)d proof .of all.egatkms of misb,e,hay~our .of ,a.:l,u.cJge iP accordan.ce ,wjth A.fticle 124(5) of the Con- g sit·i~WiP.n· T.J;i,e .d.ecision in 15.P. ,Guptq .w.as rend.erect mupl) later ,an_<! ,whil.e dealing -witb th,e si(.uM~o.ns .arising ,out ,of all.egatio11s 0f mis!>e– h,aviour •il)cludjng c;orr,u,ptiol). ,agaiQ.st High Cp,ur; J,udges, it was l:i.el,d tJ1.a.t the ,only machinery .w;jt)l l~gal s.anc~~Ol) in. ex.ists:l).ce is tha.t aya;i)- !lh)~ ~N\el" 1>1.aus~ ,( 4) an.d (Sj «if ~r#,cle ~2~ .of ttlJ,e {:,q,ns,ti,Wtipn. ~tis 0,easonah.le to .assume that ,-yhi\e .rendering tn.e decision in 15. P . .(juptq, H SCPREME COURT REPORTS [ 1991] 3 S.C. R. wherein the question of dealing with some Judges against whom alle- gations 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 functiona- ries do not fall within the purview of the Act. An additional reason indicating inapplicability of the Act is the c practical difficulty in applying criminal misconduct, defined in clause ( e) of Sub-section (I) of Section S of the Act, to a Judge of a High Court or the Supreme Court. The history of insertion of this clause by the 1964 amendment to the Act is well-known. What was earlier a rule of evidence in Sub-section (3) of Section 5 of the Act, was made a substantive offence of criminal misconduct by inserti"ng clause (e) in Sub-section ( 1) of Section 5 by this amendment. Apart from the argu- ment of the learned counsel for the appellant that the inability to satisfactorily account for possession of disproportionate assets is an ingredient of the offence in clause (e), practical requirement of this clause is a further pointer to indicate inapplicability thereof to a Judge of a High Court or the Supreme Court. The fact remains that while according sanction to prosecute under Section 6 of the Act, the compe- tent authority has to satisfy itself about the public servant's inability to satisfactorily account for possession of disproportionate assets. As held in Antulay, the competent authority before granting sanction has to apply its mind and be satisfied about the existence of a prima facie case for prosecution of the public servant on the basis of the material placed before it. In order to form an objective opinion, the competent authority must undoubtedly have before it the version of the public servant on the ba<is of which the conclusion can be reached whether it amounts to satisfactory account or not. It is we-11-known and is also clear from the Report of the Santhanam Committee that the rules applicable to the public servants in general regulating their conduct reg uire them to furnish periodical information of their assets which form a part of their service record. The recommendations of the Santhanam Committee after which the 1964 amendment inserting clause (e) in Sub-section (1) of Section 5 was made, suggest some amendment to the rules governing the conduct of public servants for giving periodical information of all their assets. Prescribing the sub- stantive offence by insertion of clause (e) as a part of the same scheme K. VEERASWAMI v. U.0.I. [VERMA, J.[ of amendment also suggests the manner in which this requirement of the offence of inability to satisfactorily account can be examined by the competent authority while granting sanction to prosecute the public servant. These words in clause (e) 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 dispro- portion and his inability to satisfactorily account can be inferred. This requirement can be easily satisfied in the case of public servants gover- ned by conduct rules requiring them to furnish periodical returns of their assets and to intimate the superior in the hierarchy of acquisition c of every materia) 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 a_uthority 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 _J satisfactorily account is made out prima facie In the case of Judges of the High Courts and the Supreme Court, there is no such requirement under any provision of furnishing particulars of their assets so as to provide a record thereof with reference to which such an opinion can be formed and there is no vertical superior with legal authority enabl- ing obtaining of information from the concerned Judge. It does appear that this too is a pointer in the direction that even af~er the 1964 amendment of the Act following the Report of the Santhanam Com- mittee when clause (e) was inserted in Sub-section (1) of Section 5 of the Act, the Legislature did not intend to include Judges of the High Courts and the Supreme Court within the purview of the enactment. If the Act is applicable to Judges of the High Courts and the Supreme Court, it is obvious that the same !Pust apply also to the Chief . Justice of India, the Comptroller and Auditor General and the Chief Election Commissioner. Incongruous results would follow in such an …. event, even assuming that the guidelines suggested by the learned Solicitor General, are deemed to be incorporated in the Act by impli- cation while dealing with persons holding these offices. Apart from the legal permissibility of implying these guidelines in the Act, there are obvious practical difficulties which cannot be overcome. In the pro· posed guidelines, it was suggested that the. involvement of the Chief Justice of India invariably should be read even for commencing the t Jj SUPREME CbURt R:El'bluS 119lJi} 3 S.C.R. lrivestigati611 irito the offence and the President, while granting the sanction uiti:ler Seciioti 6(l)(c), would also act on ihe advice of the Cliief JusiiCe of Iridia. Assuming that it is t'ertnissible io do so in the a~sence of ahy sueit pwvisiori in the Act, the problem which stares us ill !he face is, \Vhai is l.o lie ddne where such action is contemplated agilittst the Chief 1itstice cif India himself. Any provision which cannot appiy td the Chief JustiCe of 1ndia, cannot obviously apply to the itidges of the Supreme Col!d; or fot that matter even to the I-iigli toitrt iutlges, sitlte the Chief JtJstice of India is not a vertical superior tJf atty tJf tlierii, thete being tto sUcii vertical hleratchy and the Chief Justice of 1ndla having !lb power of siipetinterldence evet1 over the High Coiirt fodges, much less the Supreine Court Judges: The incum- bent of the dfflce of Chief Jusiice of lhdia exercises only moral autho- tiiy ti\let his colleagues lh the Stiptefue Court arid the High Court Judges, which has ho iegai sanction behind it making ii jtlsticiable. In !he case of the Cortipttoilet arid AuditOt Oetieral atid the Chief Eiec' lion toinihissitJiiet; !he situaiiott would be mote piquant. Obviously, the Cliiet Justice ot ittdia tahnot be involved in the process relating to ttteih ahd there is t1oi1e else. ttl fili that role in that situation. The tonstitutitJt!, while providing that their position would be akin to that of a Judge of the Supreme Court, coitid not have intended to place ihein on a pedestal higher than that of a Supreme Court Judge. The irifirlility of this argument advanced by the learned Solicitor General invoking the aid of certain implied guideline's ittvolviitg the Chief E Justice of Ifltlia iti ihe process of coiitemplated action under the Act a~ainst a Judge of the High Court or the Stipreine Court, ieaves inore tjtiestioi1s urtanswered that it attswers. That apart, if the Act was IIHerided to apply to these ctJttsiiiuiidnal futtctionaries, it could not have been eliacieti leaving sttcll gaping holes which are incapable of being plugged td !Jresent a comprehehsive scheme for this purpose. it Was aiso suggested at the hearing that the absence of need of Mlictiort fot j:frosebllioh under Section 6 of the Act after the public setvarit ceases td hoid tiffice as held in Antulay, suggests answer to the qUestion of tonstrtlction posed in this case. It does not appear to be so. the heed for sanctidh llrtder Section 6 fdt prosecution of the holder of b a public office indicates the ariibii and scope of the enactment fot deciding wheiher the holder of a public office falls within the purview of the ehadinent. No doubt, as held in Anrufoy, no sanction for pro- secution under Sectiorl 6 is required aftet the public servant ceases to hblti tiffke, blii it does tlol lmpiy ihat every holder of a public office after tdsing lo hold that office is wiittii1 tile fllltview of tHe eliactrrlertt,. 1-1 e\iett th\Jligh doting the tertute ih tiffice, only those p\J\Jtic servants ate k. VEERAswANii v. lJ iJ i iVERMA, J I wilhiii iis ambit in whose case saHetioil uhdet Section 6 tlltisi .be dbtairled. THe atribit of the enactment is to be determined dh the basis dt Hie pul:liic office held by ihe piiblit servant, wkiCh office is alleged id liave lieeh abused diitilig the ientire for cotliiiiihing the offence di criihirial itliscoridiid Uhder tile Ad and ii is iidt Hie fati bl cci!UifiUaHce iH !Hat office or ceasirlg to hold it which decides tlie aml:Hi of ike eiiaetfueliL 1H other wdrds, if tile holder of a puiiiic dffice dUfilig ills ieHUfe i11 bffice ciiiliiot be pit:lSecti\ed without sanci:idri lilidet sedioh 1l; ilieH; as heid in Aniulay, i\o sandioh for his prcisectitiori after ceaSihg ill hold tile office riiay he necessary, but his prosectitidil Is made because While iii office he touiti lie pfosecUieti Wiih the previbtis sanction .Undet SeCtion 6 .. tdnversely, ihhe holder of .a public bfflce while cotHiiiUih~ iH that office toUld ncii be prosecuted Uhder this Act dh accoliht of iiiappiicabiiity cil Seciioh 6 aha, thetefote, the nciii-feasii:i!H!y of pre- vioi.ls saiicticiii fer ptdsecUtltiri uiirler Seciiorl 6, then ci.n his ceasing tb ktJld !lie office, lie is i!bt tlhillght wiiiiih ihe purview of the Ac! ittereiy l:ietallse Antuiay decides ihai ho satlction for prdsecu!iorl under setlitJn 15 is rieedect after th~ holder ol a public bffice ceases to holtl ihat oHice. ii is fdr<ihe pUrjJtlse of tbrlsttuirtg the pro\iislbns of tHe etiadHleiii and determining the scope and ambit thereof and for tiedd- i11g whether tke holder of a public office comes withiti ihe purview ot ike erlacti!ie11i \hat ihe feasibility df previous sanction for prosecutioti anti appiicability bf Setiiciri 6 df the Aci Is impdrtaiiL lh short; It is for the pllrpbse of cdlisttuctloii of itte provisions of the enactinerii ailti detehiiitlillg its scdpe ilfat Sectitiii ll which prescribes the coridiiitlii pretetieHt of previdlls sarldioh for prosecution fot !lie offettt:e of criiiii- ilai misfoHt!Uti pi.lnisbabie under Settion 5(2) bf iiie Act, holds the key whicii urliocks ihe iHle vistas of ihe enactrtlerlt . e The cbrice~t of sanction for prosecuiion lly a siipebor is sd ih'el<- hicably woven irttb ilie fabric of the enactment that the paderri is Ji irifothplete without ii. tlie Cleat legislative irtteni is \hat the enactment applies tiiliy to those Iii whose tase sanction of this kihtl is toritethp- lated ailtl thbse to wliorli ihe provision of saiictiori carlhbi squardy apply are blltside its ambit. tiie provision for sanction is like lile keysttiHe iii Hie arch of the eHactmerli. Remove ihe keystone of sant- ticiil arid the arch cruiribles. t .the cortc!Usioll ihal. ihe Act does not apply to ihese cohsiihi- liottiil tUHclitiihiries; namely, Judges of the High toiiris; illtiges tif \lie ~lipreme biUrl, itte totnptroller and Addilot tlenefal ailtl Ille tlllef Eleciitiil toihffiiSsii:ltier; need no\ be viewetl wiili st. e"Htislli 'of if. eatetl as ti-lefr eitdusioil horn ihe purview of tlie Act as if they are ortliilaHly H c within its ambit. A proper perception would indicate that these con- stitutional functionaries were never intended to fall within the ambit of the Act as initially enacted in 1947, when provisions similar to Articles 124(4) & (5) of the Constitution were present in the Government of India Act, 1935, nor was any such attempt made by amendment of the Act' in 1964 subsequent to the Report of the Santhanarr: Committee and the same position continues in the Prevention of Corruption Act, 1988. If there is now a felt need to provide for such a situation, the remedy lies in suitable parliamentary legislation for the purpose preserving the independence of judiciary free from likely executive influence while providing a proper and adequate machinery for investigation into allegations of corruption against such constitutional functionaries and for their trial and punishment after the investigation. The remedy is not to extend the existing law and make it workable by reading into it certain guidelines for which there is no basis in it, since the Act was not intended to apply to them. The test of applicability of the existing law would be the legal sanction and justiciability of the proposed guidelines without which it is unworkable in the case of such persons. In fact, the very need to read the proposed guidelines in the existing law by implication is a clear indication that the law as it exists does not apply to them. Making the law applicable with the aid of the suggested guidelines, is not in the domain of judicial craftmanship, but a naked usurpation of legislative power in a virgin field. It appears that the framers of the Constitution, while dealing with such constitutional functionaries, contemplated merely their removal from office in the manner provided in Article 124( 4) as the only punishment; and a special law enacted by the Parliament under Article 124(.5), even for investigation and proof of any misbehaviour alleged against a superior Judge instead of the general law was clearly visualised when the alleged misbehaviour is connected with his office. A charge of corruption against a superior Judge amounting to criminal misconduct by abuse of his office would certainly fall within the ambit of misbehaviour contemplated under Article 124(5), since misbeha- viour of a Judge in the form of corruption by abuse of his office would be an act of gross misbehaviour justifying his removal from office, 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 corrupt;on. There is no escape from the conclusion that the gross misbehaviour · f 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- K. VEERASWAMI v. U.0.1. [VERMA, J.[ templates a special law enacted by the Parliament even for investiga- tion into any allegation of misbehaviour which must include an allega- tion 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 Ar ti- cle 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 B 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 misbehaviour, and in case he did not resign, his removal under Article 124(5) would be suffecient to deal with the situation. The need for his prosecution was not visualised and, therefore, not provided for in the c existing law. The Act had already been made when the Constitution was framed and the amendment made in the Act in 1964 was after the experience for some time of the functioning of the judiciary under the Constitution. It is siguificant that even the Judges (Inquiry) Act, 1968, was enacted under Article 124(5) of the Constitution much later and after the 1964 amendment of the Act. The fact that the Parliament did D not enact any other law even then for the investigation into allegations of corruption against a superior Judge and for his trial and punishment for that offence and rest content merely with enacting the Judges _, (Inquiry) Act, 1968, to provide for the procedure for removal of a Judge under Article 124( 4) is a clear pointer in the direction that the Parliament has not as yet considered it expedient to enact any such law E for the trial and punishment on the charge of corruption of a superior Judge, except by his removal from office in the manner prescribed. It may also be noticed that the provisions of the Judges (lnq,lliry) Act, 1968, provide the procedure for investigation and proof of an allega- tion of corruption against a· superior Judge and if the Prevention of Corruption Act is held applicable to them, then there would be two F separate procedures under these two enactments providing for investi- gation into the same charge. Can this anomaly and incongruity be attributed to a conscious act of the Parliament while enacting the Judges (Inquiry) Act, 1968, after the 1964 amendment in the Act. Maybe, need is now felt for a law providing for trial and punish- ment of a superior Judge who is charged with the criminal misconduct of corruption by abuse of his office. If that be so, the Parliament being the sole arbiter, it is for the Parliament to step in and enact suitable legislation in consonance with the constitutional scheme which pro- vides for preservation of the independence of judiciary and it is not for this Court to expand the field of operation of the existing law to cover c ,G the superior Judges by usurping the legislative function of enacting guidelines to be read in the existing law by implication, since without the proposed guidelines the existing legislation cannot apply to them. Such an exercise by the Court does not amount to construing an ambi- guous 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 appoint- ment 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 supeiior 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 cel- lective wisdom of the constitutional functionaries involved in the pro- cess of appointing a superior Judge is expected to ensure that persons of unimpeachable integrity alone are appointed to these high offices and no doubtful persons gain entry. In the case of any late starter or an exception, the power of removal in accordance with Article 124(4) by adopting the procedure prescribed under Article 124(5) was expected to be sufficient to eradicate the exceptional menace while preserving independence of the judiciary. If this scheme is found to be inadequate in the present context, it is also indicative of the failure of the constitu- tional functionaries involved in the process of appointments in fulfil- ling the confidence reposed in them. It is not unlikely that the care and attention expected from them in the discharge of this obligation has not been bestowed in all cases. The need for such a legislation now would, therefo~e, not be entirely on account of the absence of it so far, but also due to the failure of proper discharge of this constitutional obligation and not any defect in the constitutional scheme. It is, there- fore, time that all the constitutional functionaries involved in the pro- cess of appointment of superior Judges should be fully alive to the serious implications of their constitutional obligation and be zealous in its discharge in order to ensure that no doubtful appointment can be made even if sometime a good appointment does not go through. This is not difficult to achieve. lhe working of the appointment process is a K. VEERASWAMI v. U.0.I. [VERMA, J.] matter connected with this question and not divorced from it. Most often, it is only a bad appointment which could have been averred that gives rise to a situation raising the question of the need of such a law. Due emphasis must, therefore, be laid on prevention even while taking curative measures .. It is a sad commentary on the working of the appointment pro· cess and the behaviour of some of the appointees which has led to this situation. The confidence reposed in them by the framers of the Con- stitution has been betrayed to this extent. It was expected that the superior Judges who were constituted into a different class and created as superior morally not needing the deterrence of such a law to punish them would be alive to the need of a high code of conduct regulating their behaviour justifying the absence of such a law for them. It was reasonable to further 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 impeach- ment and removal from office under Article 124(4) being the extreme step needed, if at all. It appears that the social sanction of the com- munity 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 High Courts and the Supreme Court are outside the purview of the Prevention of Corruption Act, fits in with the constitutional scheme and is also in harmony with the several nuances of the entire existing law relating to the superior Judges while the contrary view fouls with it at several junctures and leaves many gaping holes which cannot be filled by judicial exercise. The patch· work of proposing guidelines suggested by the learned Solicitor General apart from being an impermissible judicial exercise, also does not present a complete and harmonious picture and fails to provide answers to several obvious querries which arise. The inescapable con- c c clusion, therefore, is that the Prevention of Corruption Act, 1947, as amended by the 1964 amendment is inapplicable to Judges of the High Courts and the Supreme Court. Jurisprudentially this conclusion need not be anathema as stated in 46 Am. Jur. 2d. s. 84:- "In the absence of a statute, misfeasance of a judicial officer is not a criminal offence, impeachment being the exclusive remedy." These words summarise the true legal position in the case of superior Judges who are separately classified in the constitutional scheme itself. There is nothing strange about the above view since the scheme in some other countries also appears to be the same. In recent years in some countries, there were instances which provoked a strong debate on the subject and different remedies were advocated to deal with the situation. It may be mentioned that instances of punishment for cor- ruption in earlier centuries including the indictment of Lord Bacon is not apposite for the reason that the situation then was not akin to the scheme in the Indian Constitution for the judges of the High Courts and·the Supreme Court and the protection given to them for ensuring the independence of judiciary. As indicated earlier, while adopting curative measures for the malady, a renewed emphasis on its prevention in the future has to be borne in mind. In this context, it is useful to recall the high esteem in which the higher judiciary was held by the prime builders of our nation in its nascent stage. In a letter dated 18th December, 1947, to the Prime Minister, Pt. Jawaharlal Nehru and the Deputy Prime Minister, Sardar Vallabhbhai Patel, the ffrst Chief Justice of free India said: "Under the Constitution Act, provisions can be made for the appointment, 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 bet- ween 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 K. VEERASWAMI v. U.0.I. \VERMA, J.l Rules of Business framed for working the Central Govern- ment. 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 Governor-. B General 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 execu- tive. The duty and credit for maintaining this high tradition is on the Government in existence when the Constitution and the statutory rules are framed, and I have written this to you confidently hoping that you share my desire to safe- guard the dignity and independence of the judiciary and will do the needful in the matter." Sardar Vallabhbhai Patel promptly replied to the Chief Justice of India saying 'your views will be very helpful to us in dealing with the subject.' (Sardar Patel's Correspondence, 1945-50, edited by Durga Das, Vol. VI, pp. 274-76) The framers of the Constitution had visualized the higher eche- lons of the judiciary as comprised of men of strong moral and ethical fibre who would provide moral leadership in the society of free India c and function as the sentinel of the other wings of the State not needing scrutiny themselves. Our Constitution provides for separation of powers of the three wings of the State with judicial review as one of the essential tenets of the basic structure of the Constitution. It is thus the judiciary which is entrusted with the task of interpretation of the Con- stitution and ensuring that the other two wings do not overstep the limit delineated for them by the Constitution. With this duty entrusted to the higher judiciary, it was natural to expect that the higher judiciary would not require any other agency to keep a watch over it and the internal discipline flowing from the moral sanction of the community itself will be sufficient to keep it on the right track without the requirement of any external check which may have the tendency to interfere with the independence of the judiciary, a necessary con- comitant of the proper exercise of its constitutional obligation. It is for this reason that the higher_ judiciary was treated differently in the c I 1991] 3 S.C.R. Constitution indicating the great care and attention bestowed in pre- scribing the machinery for making the appointments. It was expected that any deviation from the path of rectitude at that level would be a rare phenomenon and for the exceptional situation the provision for removal in accordance with clause (4) of Article 124 was made, the difficulty in adopting that course being itself indicative of the rarity with which it was expected to be invoked. It appears that for a rare . aberrant at that level, unless he resigned when faced with such a situa- tion, removal from office in accordance with Article 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 surpris- ing 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 delibera- tions of the Santhanam Committee which clearly mentioned in its 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 Pe.rliament to decide, then the remedy lies in enacting suitable legislation for that purpose providing for safe- guards to ensure independence of judiciary since the existing law docs not provide for that situation. Any attempt to bring the Judges of the High Courts and the Supreme Court within the purview of the Preven- tion of Corruption Act by a seemingly constructional exercise of the enactment, appears to me, in all humility, an exercise to fit a square peg in a round hole when the two were never intended to match. I would, therefore, allow the appeal even though by the majority view it must fail. ORDER In view of the majority judgments, the appeal is dismissed. R.P. Appeal dismissed. ,_