Last week, 64 Rajya Sabha members signed a notice of motion for the
removal of Chief Justice of India Dipak Misra. Rajya Sabha Chairman Venkaiah Naidu refused
to admit the impeachment motion on Monday. The question that is now being
debated is whether the Chairman enjoys discretion in accepting or rejecting a notice
signed by MPs.
The Constitution specifies the grounds and method for removal of a judge
of the High court or Supreme Court. According to it, a judge shall be removed
(a) only by an order of the President,
(b) after the presentation of an address
by each house of Parliament, (c) supported by a special majority, (d) in the same
session and (e) on the grounds of proved
misbehaviour or incapacity. The Constitution
also empowers Parliament to make a law to regulate the procedure for the
presentation of the address to the President, and the investigation and proof
of the misbehaviour or incapacity of the judge.
Till 1968, Parliament did not enact such a law. During this time,
the procedure for removal of judges of the higher judiciary involved MPs
submitting the notice of motion for removal to the Speaker, who discussed the
matter with parliamentarians concerned, and examined available material to
ensure that there was a prima facie case. If there was a case, the issue was
brought to the notice of the chief justice of the High Court concerned or the
Supreme Court. The Speaker maintained secrecy around the issue. Parliamentary
records suggest that during this time three such notices were brought before
the Speaker. And in one of these cases, the judge concerned voluntarily
resigned.
In 1964, Parliament for the first
time attempted to lay down the procedural modalities for the removal of a
judge. A bill empowering the President to order an investigation into the
allegations of misbehaviour or incapacity of a judge was introduced in the Lok
Sabha. A joint committee of both houses was constituted to examine the proposed
legislation. The panel was of the opinion that to maintain the independence of
the judiciary, Parliament should be the forum where proceedings against a judge
should be initiated, and the executive should be kept out of the investigation
at all stages.
The committee proposed a four-step process. The first step was a numerical safeguard — the notice of a motion for
removal had to be signed by at least 100
MPs of Lok Sabha, or 50 MPs of Rajya Sabha. In the second step, the Lok Sabha Speaker or Rajya Sabha Chairperson was
granted discretionary power to admit or reject a notice after consulting
legal experts and studying the available material. In case the notice was
accepted, the third step would require
the constitution of a committee to investigate the grounds for the removal
of a judge. And finally, based on the report submitted by the committee, either
Parliament would consider the motion
against the judge or dismiss it. The 1964 Bill lapsed following the
dissolution of the Third Lok Sabha (1962-1967), and a version of the Bill
similar to the committee’s recommendation was passed by the Fourth Lok Sabha in
1968.
The 1968 Bill that was passed incorporated both the numerical safeguard as
well as the discretion of the presiding officer. Y B Chavan, then Home
Minister, who was piloting the bill, in his speech in Rajya Sabha, referred to
both the safeguards. He stated that the presiding officers were given an
“effective power” that would enable them take note of notices which were
adequately signed, and check and satisfy themselves if there was a case before
admitting a motion.
This aspect of the bill was not
subscribed to by all MPs. L M Singhvi, a member of the joint committee,
submitted a dissent note in which he expressed among other things, his concerns
relating to this point. He was of the opinion that the numerical safeguard was
excessive. According to Singhvi, the
Speaker’s discretion to refuse or admit a motion was an adequate safeguard and
to “seek to fortify it any further is like wearing (obsessively and
pessimistically) a pair of suspenders in addition to a belt around the waist.”
He quoted the testimony of
parliamentary expert M N Kaul, who stated that “…the most fundamental power of the Speaker is to admit a motion. Nothing can
come before Parliament unless the Speaker admits it. That power is final and
cannot be questioned. You can remove the Speaker but you cannot question his
decision whether a motion should be admitted or not. Until a member gives
notice, the Speaker has no powers, but the moment a member gives notice, all
the powers of the Speaker come into play and then he has to exercise those
powers with great skill and caution and for the public good.”
Mr Singhvi was concerned that in light of the signatures of 100 Lok
Sabha MPs or 50 Rajya Sabha MPs, the discretion of the presiding officer would
become vulnerable as the “considerations of the intrinsic merit of the
motion and the materials on which it is based will tend to recede into the
background”. Kaul, who was nominated to Rajya Sabha in 1966, while
participating in the debate on the Bill echoed a similar viewpoint. He said, “I can hardly conceive of a Speaker who will
disallow a motion when hundred members have sponsored it unless those large
number of members have not discharged their duty in a responsible manner and
have carelessly or thoughtlessly appended their signatures. Then the
Speaker can certainly test the position by interviewing the members.”
Media reports suggest that the recent decision of the Rajya Sabha Chairman may
be challenged in the Supreme Court. If that happens, it will be interesting to see whether the apex court
rules that the presiding officers of both houses are to act as a postbox and
admit all motions which are adequately signed, or they have discretionary power
in admitting notices regarding the removal of judges.
Credit: Indian Express Explained
(http://indianexpress.com/article/explained/how-the-current-impeachment-law-for-removal-of-judges-was-shaped-5150442/)
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