Over the past seven decades, the provision in India’s Constitution relating to the impeachment of judges in the higher judiciary has failed to give satisfactory results. Most debates around abortive impeachment motions made in the past have centred around the need for India to evolve an impeachment mechanism that is less cumbersome. But a bill introduced in Parliament that attempts to make the judiciary accountable – the Judicial Standards and Accountability Bill – has been gathering dust over the last few years.
The idea of giving security of tenure to the members of the higher judiciary is aimed at ensuring the independence of the judiciary, one of the pillars of democracy.
Though the power to impeach a judge vests with Parliament, there are several safeguards in place before a judge can be removed from office. The requirement of a minimum number of MPs to sign the notice moving the impeachment motion, the admission of the motion by the chairman of the Rajya Sabha or Speaker of the Lok Sabha, the constitution of a three-member enquiry committee, a discussion on the committee’s report in the House, and the final voting process ensure that no judge is victimised for the views expressed while discharging their duties.
Past efforts at impeachment
In the early 1990s, Justice V Ramaswami became the first judge in India against whom impeachment proceedings were initiated. He was accused of irregularities in the lavish expenditure he incurred as the Chief Justice of the Punjab and Haryana High Court. His case is evidence of the futility of attempting to impeach a judge of a higher court.
A group of lawyers had sent complaints about Ramaswami to Sabyasachi Mukherjee, the chief justice of India at the time. After a preliminary enquiry, Ramaswami in 1990 was advised to desist from discharging any judicial functions until his name was cleared. In 1991, a motion to impeach him was admitted by the Lok Sabha Speaker. A three-member committee constituted to investigate the matter found prima facie evidence of irregularities committed by the judge. A debate followed in Parliament, where Ramaswami fielded Kapil Sibal to address members of the House on his behalf. Voting on the motion was set for May 10, 1993.
On the day of the vote, PV Narasimha Rao, who led the ruling Congress at the time, issued a whip for part members to be present in the House, but not to vote. While 196 members voted for the motion to impeach Ramaswami, there were no votes in his favour. Despite this, the motion failed because the Constitution mandates that the success of an impeachment motion requires two-thirds of the members of the House to be present and voting. This did not happen.
Thus, a judge against whom Parliament members had voted, and with no one to support him, survived a bid to remove him from office.
The politics of it
The impeachment of a member of the higher judiciary is always a political move. Last August, the Supreme Court of Bangladesh struck down the 16th amendment of its Constitution that had provided for the impeachment of members of the higher judiciary. The court gave a strange reason for its order. It said that the leader of the ruling party, which commands the majority in the House, has the final say in efforts to remove a judge, as she could issue a whip to members of her party to vote for the motion. This, according to Bangladesh’s highest court, was a threat to the independence of the judiciary. Ironically, the Bangladesh Supreme Court’s decision followed the Indian Supreme Court’s 2015 judgment in which it struck down the National Judicial Appointments Commission Act. One hopes that the Supreme Court of India, in the light of present developments, does not follow Bangladesh’s precedent of striking down the very process of impeachment.
The impeachment motion moved against Chief Justice of India Dipak Misra on April 20, by Opposition political parties led by the Congress, is now being described as political. But proponents of this bogey fail to realise that the world over, powers to impeach members of the judiciary have been vested with Parliament, and the motives of a particular move cannot be divorced from politics.
Whenever there is an unholy nexus between the higher judiciary and the ruling dispensation, any move to remove the black sheep will always be branded as political. Considering the several safeguards provided by the Constitution (as interpreted by the Supreme Court), these accusations do not stand to reason.
Futility of impeachment bid
The cumbersome procedure of removing judges from their posts isn’t likely to result in a sitting judge being impeached before their tenure is completed. For instance, the impeachment efforts against Justices PD Dinakaran and Soumitra Sen in 2011 did not go through because both resigned just before Parliament was to vote on the motion.
Eminent jurist Mohan Gopal, who was a member of the enquiry committee that was looking into the allegations against Dinakaran, even recommended that the last-minute resignation of judges facing impeachment should not make the impeachment motion infructuous, and that the Constitution should be amended to allow the impeachment procedure to be completed. He said that this would at least enable the judge who is found guilty both by the enquiry committee and Parliament to be deprived of terminal benefits like pension. At present, judges who resign before they are impeached can still enjoy the perks attached to their retirement.
The move initiated against Misra will not be completed before his superannuation in October. The other question is that while facing an impeachment motion, can Misra be denied judicial and administrative work? The issue is without precedent, so another question is, who can pass such an order? Apart from procedural delays, there is one additional hurdle: whether Rajya Sabha chairman Venkaiah Naidu will admit the motion. If he rejects it, his decision will have to be challenged before the Supreme Court. That brings us to more questions: who will constitute the appropriate bench to hear this plea, and what will be the outcome of the decision of that bench?
Ultimately, it is evident that the provision to impeach a judge of the higher judiciary in India is not working, and one must revive the passage of the bill relating to judges accountability.
Justice K Chandru is a retired judge of the Madras High Court.