The facts of the case are simply stated, as reported in the national media. A subordinate judge of a state judiciary complains against a senior judge of harassment and misbehaviour. The complaint is enquired into by the Chief Justice of the High Court and found to be without merit.

The senior judge is later considered for promotion to the High Court by the Collegium of the Supreme Court, the final authority in such matters. At this stage, the subordinate judge complains to the Union Law Ministry.

The latter refers the matter to the same High Court for a “fresh investigation” into the matter. The Chief Justice who first enquired into the matter has meanwhile retired. The fresh investigation is hence referred to the successor Chief Justice.

The Supreme Court Collegium that had empanelled the senior judge complained against that it had not been consulted. Meanwhile, the elevation of the senior judge to the High Court is held in abeyance pending “fresh investigation”.

Reportedly, the successor Chief Justice has initiated the enquiry without obtaining the directions of the Collegium or the Supreme Court. He commences the enquiry merely on the “directions” of the Union Ministry of Law and Justice.

A number of Constitutional issues arise. All investigation into criminal offences is finally closed once the charges are found to be untrue by the competent authority.

The law does provide for “further investigation” in case of incomplete investigation or if fresh evidence is discovered before the matter is referred to an independent court of law for trial. But the law bars “fresh investigation” or “re-investigation” on the same charge once the first investigation is closed.

The Supreme Court has laid down the law explicitly in the case of Ramchandran v. Udayakumar in 2008. “The police (i.e. the investigation agency under the law) cannot embark on the re-investigation on the same facts and materials of the case.”

Investigation of criminal offences is carried out under the Criminal Procedure Code, 1860 of the nation, the oldest law in the statute book. Whereas it provides for “further investigation”, it does not provide for fresh investigation or re-investigation.

The investigation of criminal cases is the responsibility of the Executive, and the Judiciary has no role in it. This is the clear position under the law, in terms of the doctrine of ‘separation of powers’ as enunciated by the Supreme Court.

The Court has sanctified this doctrine in the celebrated case of Keshvananda Bharati as the immutable ‘basic structure’ of the Constitution more than four decades ago. Of course, the Supreme Court (and the High Courts) has reserved to itself the power to monitor investigation in exceptional cases handled by the CBI.

In the instant case, the former Chief Justice of the High Court concerned, as the investigation authority had formed an opinion about the veracity of the complaint and found it to be without merit.

The case ought to have been considered as closed, otherwise a proper charge-sheet would have been filed in a court of law for a judicial trial. Besides, and what is more important, the matter was within the purview of the Judiciary. The Executive had no role in it. Undeniably, under the law, the Executive has the sole prerogative to order and conduct all criminal investigation through its agencies, mainly the police.

But the Supreme Court has directed, and very wisely that the criminal complaints against members of the Judiciary cannot be investigated by the Executive without the prior permission of the Chief Justice. This is as it should be, otherwise the independence of the Judiciary, a sine qua non of a functioning democracy would be seriously compromised.

Reportedly, the Union Law Ministry has directly written to the State’s Chief Justice concerned to re-investigate. This should not have been done, for several reasons. The Law Ministry is an arm of the Government, indeed the legal face of the Executive.

It can be described as the legal conscience of the state. It is the pre-eminent agency to guide and advise the ministries and the departments on matters legal. It can be highly embarrassing for the Government if its prime legal agency is accused of violating the law of the land.

Secondly, a reinvestigation is not justified in law, particularly if a member of the Judiciary is involved. The distinction between ‘further investigation’ and ‘re-investigation’ is both fine and subtle. It should have been evident that the Collegium has accepted the closure report submitted in the first investigation by the then Chief Justice.

Otherwise, the Collegium would not have recommended the senior judge concerned for elevation to the High Court. It is further reported that the complainant has represented to the Law Ministry that the first investigation was not properly done.

The proper course for the Law Ministry ought to have been to refer the complainant’s representation to the Collegium for disposal and left the matter at that. Even assuming that the representation had merit, and that it was a case of further investigation, and not re-investigation, the final opinion would have been that of the Collegium. The Law Ministry had no jurisdiction whatsoever.

The Law Ministry cannot even claim the benefit of doubt in the case, involving the interpretation of “investigation”. Re-investigation, once allowed would have frightening ramifications impacting the rule of law.

It would arm the executive, as the lawful authority to carry on the process of investigation endlessly against its opponents. Re-investigation will open a Pandora’s box, impossible to close. The Union Law Ministry should be the last agency of the Executive to violate legal procedures.

There is another aspect to the case which should have been the overriding concern for the Law Ministry. In a recent case, the Supreme Court has ruled that the National Judicial Appointments Commission Act was ultra vires the Constitution, and that the Judiciary will continue to have the final say in the appointments and elevation of the members of the higher Judiciary. It was strenuously opposed by the Executive ~ “Tyranny of the unelected.”

Fortunately for the nation, the Supreme Court stood its ground and did not allow the Executive to overawe it. The net gain is that the Executive will not be able to push its agenda through judges sympathetic to the ideology of the ruling party, in the expectation of post-retirement rewards.

It can only strengthen the independence of the judiciary and thereby the rule of law. The instant case only reinforces the wisdom of the ruling of the Supreme Court that the Executive in India cannot be trusted with the appointment of the members of the higher Judiciary on merit and merit alone.

There is a classical saying that if the salt of the earth loses its flavour, there is no hope. If the Law Ministry, the conscience keeper of the Government violates legal procedures, it does not augur well for our democracy.

The writer is a retired IAS officer and Member, International Academy of Law