“He that is proud eats up himself: pride is his own glass, his own trumpet, his own chronicle.”
The Indian Supreme Court, perhaps the most accessible superior court of the democratic world, and a fiercely independent institution, is in the midst of a storm. A storm that cannot be blamed on a person, a group of people or a political party, but on all of them.
Recently, the person occupying the highest judicial office in the country- The Chief Justice of India (CJI)- was challenged by his colleagues on the court in an unprecedented press conference. What followed was a scrutiny of each of his decisions, and a political upheaval. A group of Opposition parties moved a motion in the Rajya Sabha (the Upper house of India’s Parliament) to remove the CJI Dipak Misra (pictured).
In the media frenzy that has followed, certain facts have been misconstrued, one of them being that this actually not an ‘impeachment’ proceeding as Article 124 of the Indian Constitution (which governs the process), does not use this word. The term impeachment has been used in Art. 61 to refer to the removal of the President of India alone. It may seem like an unnecessary detail however, semantics or legalese would have it- codification- changes the game.
The procedure has been guided by Article 124 of the Indian Constitution along with The Judges (Inquiry) Act, 1968. The procedure so laid down can be summarised in the following manner:
A removal motion can be moved in either of the two houses of Parliament. It must be signed by 100 members (of Lok Sabha, the Lower House) or 50 members (of Rajya Sabha) and thereafter handed to the Speaker/Chairman for Lok Sabha or Rajya Sabha, respectively, as applicable.
Art. 124 specifies that a judge can only be removed on grounds of proven misbehaviour or incapacity and therefore a process to ascertain the veracity of the charges is required.
The Speaker/Chairman, then consult with their legal teams to scrutinize if the motion meets the criteria of the Act and can accordingly accept or reject the same.
If it is admitted, then the Speaker/Chairman constitutes . The Committee should consist of the Chief Justice or a judge of the Supreme Court, a chief justice of a high court and a distinguished jurist. The judge against whom the motion is presented cannot be a member of the committee, but may be heard.
If the committee finds the judge to be guilty of the charges, the House in which the motion was introduced, takes the report for consideration and proceeds to vote on the motion itself.
A majority of 2/3rds of the members present and voting, with atleast more than 50% of the members being present, is required to pass the motion. If passed, the motion is commended to the other house for consideration.
The same majority is required in the other house. If the motion passes in the second house as well, the process reaches a de-facto conclusion and it constitutes an advise of the Parliament to the President to commence proceedings to remove the judge.
A de-jure culmination is reached as soon as the President signs the warrant for removal of the judge after the above steps have been completed.
In the history of Independent India, while proceedings under Art. 124 have been initiated against judges of Supreme Court and High Courts, never has a judge been removed as the motions have either failed or the judge in question resigned before the culmination of the proceedings, which thereafter abated. In addition, this was the first instance when a motion was moved to remove the Chief Justice of India. Here is a list of previous instances when proceedings for removal were initiated.
Justice V. Ramaswami of the Supreme Court of India has the infamous reputation of being the first judge against whom removal proceedings were initiated. In 1993, the motion was brought up in Lok Sabha, but it failed to secure the required two-thirds majority. The motion was moved by Opposition Parties led by the BJP in 1993 on allegations of misuse of public funds owing to alleged ostentatious expenditure on his official residence while he was Chief Justice of the Punjab and Haryana High Court.
In 2015, a group of 58 Rajya Sabha MPs moved removal proceedings against Justice J.B. Pardiwala of the Gujarat High Court for his “objectionable remarks on the issue of reservation”.
Justice P.D. Dinakaran, Chief Justice of the Sikkim High Court, faced removal proceedings in the Rajya Sabha on allegations of corruption in 2011. He resigned before the proceedings culminated in a vote.
Justice Soumitra Sen of the Calcutta High Court also avoided the ignominy of being the first judge to be removed by a vote of Parliament by resigning in 2011.
Apart from the above, there are no previous instances in Independent India of removal proceedings being initiated against judges of the Supreme Court or High Courts. This brings us to the recent controversy surrounding the rejection of the motion for removal by Vice President of India Venkaiah Naidu (pictured)- who is the ex-officio Chairperson of the Rajya Sabha.
In the entire controversy the behaviour of the members of the parliament who moved the motion has been astonishing. They blatantly ignored Rule 2.2 of Parliamentary Customs and Conventions handbook which mention that “A notice for raising a matter in the House should not be given publicity by any Member or other person until it has been admitted by the Chairman and circulated to Members. A Member should not raise the issue of a notice given by him pending consideration of the Chairman.” By holding multiple press conferences and publishing the news on Twitter, the members blatantly ignored this practice.
Section 3 (1) of the Judges Inquiry Act empowers the Speaker or Chairperson to consult such persons, as he thinks fit, and considering such materials, as may be available to him before making a decision on accepting a motion for removal. Vice President Naidu’s has contended that his responsibility to admit – or reject – the motion is part of parliamentary procedure.
In addition, he has cited the phrase “proved misbehaviour” used in Article 124(4) of the Constitution to contend that the prefix “proved’ places an obligation of actually proving the misbehaviour before the actual procedure for removal of a judge can come into play. He said,
“At the stage of admission, I have to apply a test that if every statement stated in the petition is believed to be true, would it still amount to a case of “proved misbehaviour” within the scope of Article 124(4) of the constitution of India”
He has relied on the Supreme Court’s judgment in In Re: Mehar Singh Saini (2010) to argue that the acceptance or rejection is part of parliamentary proceedings. This is critical as it can decide the scope of intervention the courts can make if the opposition parties were to challenge the Vice President’s decision. Under Art. 122 of the Constitution of India, all courts are barred from inquiring into the proceedings of the Parliament. This is in keeping with the well-established principle of deference that the three arms of the state give to each other in Constitutional democracies such as the US, UK or India. Therefore, if the Vice President succeeds in defining the issue as being part of Parliamentary proceedings, it becomes immune to judicial review.
Kapil Sibal, Lawyer and Senior Leader of the Indian National Congress
However the Re: Mehar Singh Saini case relies on another judgment of the Supreme Court, Sub-Committee on Judicial Accountability v Union of India. In that case, the bench observed,
“The constitutional process for removal of a judge up to the point of admission of the motion, constitution of the committee, and the recording of findings of the committee are not, strictly, proceedings in the houses of parliament.”
And further that,
“The scheme of Articles 124(4) and (5) is that the entire process of removal is in two parts – the first part, under clause (5) from initiation to investigation and proof of misbehaviour or incapacity is covered by an enacted law, parliament’s role being only legislative as in all the laws enacted by it, the second part under clause (4) is in parliament and that process commences only on proof of misbehaviour or incapacity in accordance with the law enacted under clause (5). Thus the first part is entirely statutory, while the second part alone is the parliamentary process.”
“The constitution intended a clear provision for the first part covered fully by enacted law, the validity of which and the process there under being subject to judicial review independent of any political colour and after proof it was intended to be a parliamentary process. It is this synthesis made in our constitutional scheme for removal of a judge.”
It is yet to be seen that if the Vice President’s decision will be challenged in the Supreme Court but there definitely is reason to believe that law on this subject may not be all that clear. Chief Justice Dipak Mishra will be retire on October 2, 2018. This proceeding may never follow through if he retires before a final decision by the President of India.
What should concern us the most is the fact that which political party would be held responsible for the immense damage that the judiciary’s reputation has undergone. Those who have never been fans of an independent judiciary are probably very happy with the current state of things. A politicised judiciary goes against the grain of tradition established by this critical institution for itself. We should not forget that the Indian Supreme Court fills a more important role in Indian polity than what courts internationally have done. It has intervened to save the environment when legislative action was missing, has played a role to decriminalize politics and has almost always stood for individual liberty and zealously guarded the Constitution through the toughest times. The innovation of Public Interest Litigations have allowed for issues of weakest sections of the society to come forward. It has even allowed people to gain justice by merely sending letters which are then converted to petitions and argued by lawyers paid for by the state, helping the poor and the downtrodden achieve dignity without having to spend a fortune to present their case before the court. For such an institution to be in this quagmire is saddening. It is therefore important to prevent any more damage to its reputation and fix, sensibly, any infirmities in its functioning.
About The Author
Soumya Khurana is a law and CS student, an avid reader and an articulate speaker. Soumya has conducted training sessions and adjudged several debating and Model United Nations Conferences at institutions such as Sri Venkateswara College, SGTB Khalsa College, Presidium School, among others.