The unprecedented rejection of
the motion for impeachment has raised multiple questions, but the wider context
of the unfolding spectacle includes a range of related matters. Some key
questions answered.
Is there a provision in the
Constitution that deals with the impeachment of the Chief Justice of India
(CJI)?
Not the CJI specifically. As the CJI
is only the first among equals, he too, like other judges of the Supreme Court
and High Courts, can be impeached “on
the ground of proved misbehaviour or incapacity” under Article
124(4). The Judges (Inquiry) Act, 1968, contains details of
the process. The motion is to be signed by 50 members of Rajya Sabha or 100
members of Lok Sabha and, if it is admitted, an inquiry committee consisting of a
Supreme Court judge, a High Court Chief Justice, and a distinguished jurist is
to probe the charges. If the charges stand proven, the motion is to be
presented to each House of Parliament and passed by a majority of the House and
2/3rds of those
present and voting in the same session. So, even if the charges are proved, Parliament is not bound to remove
such a judge. Finally, the President will issue the order removing the
judge.
Is impeachment a political
process?
It is neither entirely political nor entirely judicial, but a fine and
judicious blend of the two. The process of admission of the impeachment
motion, constitution of inquiry committee, and its findings are in the nature
of judicial processes, but the adoption of the motion by Parliament is
certainly a political process, as members do vote along party lines.
What powers does the
Vice-President have with regard to admitting or rejecting a motion for
impeachment?
Both the Chairman of Rajya Sabha and Speaker of Lok Sabha must conduct
themselves in such a manner that their actions demonstrate their utmost
impartiality. In deciding on an impeachment motion, the Vice-President should not ideally take over
the role of the inquiry committee, and pass judgment on the allegations.
For the first time in Indian history, an impeachment motion has been rejected
at the admission stage. But at the same time, as the Presiding Officer, the
Vice-President is not supposed to mechanically admit any motion just because it
has been signed by the requisite number of members. In his 10-page rejection
order on Monday, the Vice-President has said that misbehaviour has not been
proved. While “proved misbehaviour” is
the ground for the removal of a judge, it is the job of the inquiry committee
to give a finding on whether the charges are proved. But again, if the
charges are prima facie totally without
substance, the Vice-President does have the right to block an impeachment
motion at this initial stage itself.
On what grounds has the
Vice-President rejected the impeachment motion?
The Vice-President is not duty-bound to give reasons — even though, in
this case, M Venkaiah
Naidu has given detailed reasons. There is no timeframe within which he must decide. He may form his opinion
after consulting such persons as he
deems fit and after considering such material as may be made available to
him. Naidu has rejected the motion after finding the grounds for impeachment
untenable, and based on conjectures without any empirical evidence. He has also
pointed to some contradictions in the motion.
What exactly is “proved
misbehaviour”?
The Constitution does not define ‘incapacity’ and ‘proved misbehaviour’.
The misconduct of a judge is to be proved outside Parliament before a
non-parliamentary committee. The Judges (Inquiry) Bill, 2006, defined ‘proved
misbehaviour’ as wilful or persistent conduct which brings dishonor or
disrepute to the judiciary; wilful or persistent failure to perform the duties
of a judge; wilful abuse of judicial office, corruption, lack of integrity or
committing an offence involving moral turpitude. The Judicial Standards and Accountability Bill,
2010, proposed to widen the definition of misconduct by adding that
‘lack of integrity’ included rendering judicial decisions for collateral or
extraneous reasons, demanding any kind of consideration for giving judgments,
and such other acts that have the effect of subverting the administration of
justice. The failure to furnish a declaration of assets and liabilities, or
wilful giving of false information were also included within ‘misbehaviour’.
In C Ravichandran Iyer vs Justice A M
Bhattacharjee (1995), the Supreme Court itself laid down that
misbehaviour is a wider term for which no straitjacketed definition may be
given. It can be submitted, therefore, that if, due to a judge’s conduct, the judiciary’s credibility has suffered,
it can be considered as misbehaviour. This is certainly a political
question. Even conduct prior to assuming office is covered — this was why Rajya
Sabha had passed the impeachment motion against Justice Soumitra Sen in 2011.
What should be the standard of
proof?
The Vice-President has said the charges have not been proved “beyond reasonable doubt” — this is, thus, the standard
of proof. However, expectations from judges should high. In all civil matters, the standard of proof
is “preponderance of probabilities”. Both
Australia and South Africa have the latter as the standard of proof in their
impeachment processes for judges.
Does the judge have a right to
be heard?
Yes, but not at the time of admission of the motion — that is why
the Vice-President did not inform the CJI. During
the inquiry, the judge has the full right to defend himself. Justice Sen
even addressed Rajya Sabha after the inquiry found him guilty of “proved
misbehaviour”, and the House was considering the motion for his removal.
One of the charges against CJI
Dipak Misra is that he sent sensitive matters to particular Benches by misusing
his authority as Master of the Roster. Which
recent judgments have been controversial for this reason?
In a judgment delivered on April
11 (Ashok Pandey), a three-judge Bench led by CJI Misra said that “as
repository of constitutional trust, the Chief Justice of India is an
institution in himself”, and must, therefore, be trusted. Justice D Y
Chandrachud, who authored the 16-page order, himself will be CJI in the near
future.
Another judgment was given on
November 10, 2017, by a five-judge Bench led by the CJI, which overturned
within 24 hours an order passed on November 9 by a two-judge Bench of Justices
J Chelameswar and S Abdul Nazeer, which had said that a case of alleged
judicial corruption involving a blacklisted Lucknow medical college, should be
heard by a Constitution Bench comprising the five most senior judges of the
Supreme Court. This was unprecedented, as administrative powers were used by
the CJI to constitute a five-judge Bench, which then judicially overturned the
order of the Justice Chelameswar-led Bench. Since the CJI was on a Constitution
Bench, the case had been mentioned before court number 2 in a routine manner, and
this court passed an order to list the matter before the five most senior
judges. The five-judge Bench underlined that only the CJI had the power to
decide who hears which case. Two petitions, by Kamini Jaiswal and CJAR, seeking
an SIT probe into the matter, were subsequently dismissed.
In both these cases, the CJI’s absolute power as master of the rolls
was upheld. While this is certainly the correct legal position today, it
must be noted that in “administrative
actions”, the CJI cannot act in an arbitrary manner.
So, what options are available
to the opposition now?
They can go to the Supreme Court
— senior Congress leader Kapil Sibal has already announced they will challenge
Naidu’s order. If that happens, ideally, the CJI should not hear the matter or
constitute the Bench to hear it; in fact, no judge who is in line to be CJI in
the future should sit on the Bench, which will underline both the independence
and integrity of the Supreme Court. The
principle of “no one shall be a judge in his own case” should be strictly
adhered to, so that “justice is not only done, but is also seen to have been
done”. In Tulsiram Patel (1980), the Supreme Court itself held that non-observance of the principles of natural
justice violates the right to equality.
In the context of the
challenge to the CJI’s decisions, is the judiciary seen as ‘state’ under our
Constitution?
The ‘judiciary’, when acting
judicially, is not ‘state’. But when the
CJI or the Supreme Court take administrative decisions, they are definitely
subject to fundamental rights. In Srilekha Vidyarthi (1991), the court said
that reasonable and non-arbitrary
exercise of discretion is an inbuilt requirement of law, and any unreasonable
or arbitrary exercise of it violates the right to equality. Bench
constitution being an administrative function, the CJI cannot act in an
arbitrary manner.
But if all judges are equal in
powers, why the debate about picking ‘junior’ judges?
All judges are equal and
seniority has no bearing on the constitution of Benches. In fact, in many
cases, junior judges have authored better judgments. But then, equality also
means that senior judges be treated equally and fairly with junior judges.
Their exclusion has sent wrong signals.
Other than impeachment, what
other mechanism of judicial accountability is available under the Constitution?
There is none. And because the
impeachment process is tedious and lengthy, judges have virtually no
accountability. The complexity of the impeachment process has ensured that no
judge has been removed so far.
What reforms have been
proposed to ensure better judicial accountability?
The Judges (Inquiry) Bill, 2006,
based on the 195th Report of the Law Commission, sought to create a judicial
forum to deal with complaints against judges with the establishment of the
National Judicial Council, which was supposed to investigate charges of misbehaviour.
Four senior-most judges were to serve as its members. Where impeachment was not
warranted, warnings and advisories could be issued, and withdrawal of judicial
work, asking a judge to voluntarily retire, and private or public admonition or
censure were proposed as minor consequences. The Bill was criticised as the Constitution does not give Parliament power
to create new punishments. Its
powers under Article 124 are confined to regulating the investigation and proof
of misbehaviour. The Bill could not be passed as the then Opposition did
not allow Parliament to function, and the UPA government failed to evolve a
consensus.
Credit: Indian Express Explained
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