By Dr S.Saraswathi
(Former Director, ICSSR, New Delhi)
The country is undergoing a bitter experience of playing a dangerous game with our democratic institutions. Notwithstanding the motion by political parties to impeach the Chief Justice of India was declared ‘neither tenable nor admissible’ by the Rajya Sabha Chairman, the damage done to institutions and inter-relationship between different organs of the government cannot be erased.
The incident has given rise to statements by parliamentarians, discussions between political parties, signature campaigns, veiled threats, and public debates spoiling the image of the judiciary on which the trust people repose on the judges depends. Several petitions are filed in the Supreme Court overlapping one another making it difficult to keep track of them.
Five charges against the CJI were mentioned in the motion, moved by seven political parties and signed by 71 Opposition members of Rajya Sabha, surrounding alleged bribery, misuse of power, and abuse of power as master of roster. The chairman, who is also the Vice President, held the charges were based on mere suspicion and conjecture.
The unusual press conference addressed by four sitting judges of the Supreme Court on 12th January against their chief, seems to be the visible starting point for the present controversy over impeachment. The Congress immediately seized the opportunity to exploit the differences within the judiciary for its own political advantage — a natural and instinctive reaction of a political party eager to catch every opportunity to project its potential power in and out of power over institutions. It circulated a draft proposal for removal of the CJI – a move provided in the Constitution, but not used.
An NGO based in Pune moved a petition in the Supreme Court seeking framing of guidelines for removal of any judge of a constitutional court in Parliament with the intention of ending the “chilling effect” of prolonged discussions on the judges and “assault on the judiciary” and introducing definite guidelines in the matter. Public discussion about the functioning of judges, it was said, would cause irreparable damage and injury to the independence of the judiciary.
An attempt to institutionalise the functions of the CJI was made following the press conference of four judges to avoid the possibility of “selectively allocating sensitive and nationally important cases to preferred Benches”. The objective of trying to codify the manner of allocating cases was intended to “mend fences within the Supreme Court”. Meantime, the CJI as part of his normal functions published a subject-wise roster exercising his power of allocating cases.
A PIL seeking a check on the authority of the CJI as “Master of Roster” came before the Supreme Court on 13 April pleading that the authority should not be reduced to an “absolutely singular and arbitrary” power. It was taken up although the Constitution Bench of the Supreme Court in November 2017 had already declared that CJI had absolute administrative authority as “master of roster” to allocate cases and constitute Benches. Another judgement on 11 April on a petition to evolve a set procedure for constituting Benches and allocating cases reiterated the position that the CJI had the “exclusive prerogative” in the matter.
All petitions seeking clarification of the Supreme Court on the administrative authority of the CJI as the master of roster and the procedure and principles to be followed in preparation of the roster are being heard despite earlier judgments on the issue. The matter is exceedingly important for justice system as well as to maintain the democratic principle of separation of powers.
Article 124 (4) of the Indian Constitution provides for removal of a Judge of the Supreme Court only 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”.
Parliament may by law regulate the procedure for the presentation of an address and for the investigation and proof of misbehaviour or incapacity of a judge. The Judges Enquiry Act of 1968 regulates the procedure.
The role of Parliament is not unlimited as a judgement of the Supreme Court provides that the independence of the judiciary as mandated by the separation of powers doctrine is part of the basic structure of the Constitution.
A ruling of the Supreme Court given in 1992 directed the Speaker and the Chairman “to act with utmost care, circumspection, and responsibility” and to keep equally in mind “the seriousness of the imputations, nature and quality of the record before him, and the indelible chilling effect on the public administration of justice”.
A group of five Supreme Court judges attempted to codify the broad duties of the CJI particularly in allocation of cases after 12 January press conference of some judges. But, no conclusions were reached.
In Britain, both Houses of Parliament have power to petition the Queen for removal of a judge of the High Court or Court of Appeal — a power that can be traced to 1701 Act of Settlement incorporated in the Supreme Court Act, 1981. However, it has never been used in England or Wales.
In the US, the Constitution provides that federal judges are appointed for a life term serving during “good behaviour”. There is no provision expressly for removal of judges, but they fall in the category of “civil officers” and as such can be removed or impeached for “treason, bribery, or other high crimes, and misdemeanours”. Fifteen federal judges have been impeached and only eight convicted.
State judges can be impeached and removed by State legislatures on proved charges of “high crimes” or “gross immorality”. The US Supreme Court has enormous powers of review and interpretation that it is generally looked upon as the “safety valve” or ‘balance wheel’ of the Constitution. Supreme Court has grown really supreme in importance.
Impeachment of a judge is a very serious matter and should not be part of party politics. The very effort to muster support for and against on party basis makes it a political issue far removed from law and justice or the qualities expected of judges and judgements. The grounds on which impeachment can take place under the Constitution in India are not political and hence, how party alliances are formed and negotiations take place for support for impeachment are inexplicable. Still, the issue is totally politicised in India.
Impeachment is not a way of settling political scores. In the present political environment in India, where everything is politicised and viewed from political spectrum, judiciary has to keep alert to jealously guard its independence. It requires inner unity to collectively withstand intrusions from power politics. The challenge today is not for any individual judge but to the institution of judiciary. Differences within the judiciary can best be sorted out within, without opening them for public discussion or political interference.—INFA