Friday, July 20, 2018 10:02 PM

Impeachment, My Lord!

The impeachment motion moved by opposition parties is an inevitable attempt to resolve the serious issues raised by four senior most judges. The Constitution allows for such a parliamentary scrutiny when things in judiciary go wrong. The separation of powers envisaged in the Constitution and interpreted as basic structure by the apex court calls for inter-relationship between legislature, judiciary and executive. 

 

The issues flagged off by the members of the Supreme Court collegium are not personal in nature, but have a lot to do with integrity, transparency and credibility of the highest judicial institution. The Supreme Court was expected to resolve its own issues, but, weeks after the alarm bells were rung by sitting judges, which is unprecedented in the history of Indian Judiciary, the Chief Justice failed to take any initiative whatsoever. Instead, the practices questioned by the senior judges are continued. 

However, the issues cannot be brushed under the carpet. Parliament, as per the Constitution, cannot discuss issues internal to judiciary as courts cannot adjudicate on parliamentary proceedings, except on the grounds of substantial illegality. Therefore, no pillar of democracy is immune to constitutional scrutiny. Under the constitutional scheme of things, the only way out in the given context is to move an impeachment motion which does not automatically lead to removal of any judge. In fact, the present Chief Justice may retire much before the impeachment motion is processed. However, it is imperative for the Parliament to take up such a motion as it cannot be seen as an attack on individual, but an attempt to ensure independence of judiciary.
 
 
The Constitution of India envisages separation of powers between executive, legislature and judiciary. The apex court in the famous Kesavananda Bharati Case adjudicated that this separation of powers is the basic structure of the Constitution and that cannot even be trampled upon by an act of Parliament. 
But, this separation of powers does not negate the inter-relationship as the ultimate mandate is that of the Constitution. This is precisely the reason the courts in India have struck down many legislative actions by Parliament. The nation celebrated this as judicial activism to preserve and promote Indian democracy.
 
However, judicial activism, as the apex court itself observed, should not degenerate into judicial adventurism by encroaching upon the legitimate jurisdiction of executive or legislature. As the apex court remarked in one of its judgements, the courts cannot decide what should be the height of a speed breaker. 
 
Thus, these three pillars of Indian democracy should exercise this separation of powers and the inter-relationship within the domain of Constitutional scheme of things in a matured manner only to augment the democratic traditions of India. 
 
Thus, though the Parliament is vested with the powers to impeach judge by the very Constitution that gave judiciary independence, it should not be a trivial affair. But, the Parliament which is an embodiment of the sovereignty of the people cannot be oblivious to the grave internal threats to judicial institutions that too when the judiciary fails to correct itself through the procedures established by the law and the convention. 
 
The fundamental issue raised by the four judges is that Chief Justice is the Master of the Roster in the Supreme court. But, he or she cannot exercise this in an arbitrary manner contrary to the established traditions. Such lack of impartiality and transparency is a matter of grave concern. This is not to accuse that the Chief justice of India acted in a partisan manner. But, it is not just enough to deliver justice, but must be seen to deliver justice too. 
 
The way benches were constituted, and cases allotted to them ignoring the seniority of the judges without citing any reasons for doing so that too in regard to important cases having political significance certainly raise serious questions over the functioning of highest court of India. 
 
At a time when the present dispensation is notorious for the dismantling of institutions to further its political project, such a non-transparent and unilateral functioning of Chief Justice, as questioned by the senior judges, is a matter of urgent importance. The political system cannot be a passive spectator when the independence and credibility of judiciary is at stake. Individuals hardly matter. Institutions and their traditions certainly should be held in high esteem. 
 
One can have an opinion on the merits and demerits of the issues raised by the four judges. One can even differ on the procedure adopted by the senior most judges to ventilate their grievances. But, none would deny the fact that these issues need to be debated, verified and addressed, if found to be genuine concerns. This cannot happen in television studios or in the newspaper columns. 
 
The ideal way as already emphasised would be through a process of internal dialogue within the judiciary. For reasons not known to us, this did not happen. The only option left, therefore, is to call for parliamentary scrutiny and the only method left is through an impeachment motion. 
 
The following articles of the Indian constitution clearly state the role of Parliament in dealing with such matters of concern with the functioning of judiciary. The said provisions of the Constitution read as follows: 
 
Article 124(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 supported by a majority of the total membership of that House and by a majority of not less than two-thirds of the members 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. 
 
Article 124(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).
There is a clearly laid down procedure for the impeachment to ensure that judges cannot be fired so easily at the altar of political expediency. 
 
Once the requisite numbers in Parliament – 50 in the case of Rajya Sabha and 100 in respect of Lok Sabha – submit a motion to the presiding officers of both Houses, the Chairman and the Speaker respectively, give a notice for impeachment. Once the presiding officer establishes that the procedure laid by the Constitution has been followed, then it is constitutionally mandated that the presiding officer constitutes a three-member committee comprising a sitting Supreme Court judge, a sitting Chief Justice of a High Court, and an eminent jurist.
 
This committee will examine the charges made in the motion for impeachment and conduct an inquiry to establish the facts. Once the committee’s report is available to the Chairman and this committee comes to a conclusion that there is something amiss, only then the matter will proceed. If the committee says the charges are baseless, that’s the end of the matter. But if the committee establishes to the contrary, the motion will be adopted and then the MP whose signature appears first on the motion will be asked to move the impeachment motion formally inside the House.
 
The House is seized of the matter and the motion is moved on the floor of the House and debate takes place. The House converts itself into a Bar and the judge concerned will appear before it as if he is appearing before a full judicial Bar. The judge concerned will have his full say in his defence and only after that, a discussion will start among the MPs and then on that basis, a vote will be taken. (http://www.frontline.in/cover-story/the-integrity-and-independence-of-the-judiciary-is-nonnegotiable/article10055186.ece).
 
Therefore, it is wrong to argue that a judge can be removed at a sweet will of any Member of Parliament. The process of impeaching a judge is also not immediate. 
 
The long constitutional procedure for impeachment is consciously laid to ensure that the impeachment of judges will not be trivialised. 
 
Contrary to the arguments of the critics that this is targeting of Chief Justice personally, the impeachment is aimed at correcting systemic flaws as independence of judiciary is non-negotiable. 
 
This article was first published in The Hans India.
 
 
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