Opinion

Impeachment moves against judges are always political – but safeguards exist against arbitrariness

India needs a less cumbersome way to impeach judges and make the judiciary more accountable. The Judicial Standards and Accountability Bill should be revived.

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.

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Swara Bhasker: Sharp objects has to be on the radar of every woman who is tired of being “nice”

The actress weighs in on what she loves about the show.

This article has been written by award-winning actor Swara Bhasker.

All women growing up in India, South Asia, or anywhere in the world frankly; will remember in some form or the other that gentle girlhood admonishing, “Nice girls don’t do that.” I kept recalling that gently reasoned reproach as I watched Sharp Objects (you can catch it on Hotstar Premium). Adapted from the author of Gone Girl, Gillian Flynn’s debut novel Sharp Objects has been directed by Jean-Marc Vallée, who has my heart since he gave us Big Little Lies. It stars the multiple-Oscar nominee Amy Adams, who delivers a searing performance as Camille Preaker; and Patricia Clarkson, who is magnetic as the dominating and dark Adora Crellin. As an actress myself, it felt great to watch a show driven by its female performers.

The series is woven around a troubled, alcohol-dependent, self-harming, female journalist Camille (single and in her thirties incidentally) who returns to the small town of her birth and childhood, Wind Gap, Missouri, to report on two similarly gruesome murders of teenage girls. While the series is a murder mystery, it equally delves into the psychology, not just of the principal characters, but also of the town, and thus a culture as a whole.

There is a lot that impresses in Sharp Objects — the manner in which the storytelling gently unwraps a plot that is dark, disturbing and shocking, the stellar and crafty control that Jean-Marc Vallée exercises on his narrative, the cinematography that is fluid and still manages to suggest that something sinister lurks within Wind Gap, the editing which keeps this narrative languid yet sharp and consistently evokes a haunting sensation.

Sharp Objects is also liberating (apart from its positive performance on Bechdel parameters) as content — for female actors and for audiences in giving us female centric and female driven shows that do not bear the burden of providing either role-models or even uplifting messages. 

Instead, it presents a world where women are dangerous and dysfunctional but very real — a world where women are neither pure victims, nor pure aggressors. A world where they occupy the grey areas, complex and contradictory as agents in a power play, in which they control some reigns too.

But to me personally, and perhaps to many young women viewers across the world, what makes Sharp Objects particularly impactful, perhaps almost poignant, is the manner in which it unravels the whole idea, the culture, the entire psychology of that childhood admonishment “Nice girls don’t do that.” Sharp Objects explores the sinister and dark possibilities of what the corollary of that thinking could be.

“Nice girls don’t do that.”

“Who does?”

“Bad girls.”

“So I’m a bad girl.”

“You shouldn’t be a bad girl.”

“Why not?”

“Bad girls get in trouble.”

“What trouble? What happens to bad girls?”

“Bad things.”

“What bad things?”

“Very bad things.”

“How bad?”

“Terrible!!!”

“Like what?”

“Like….”

A point the show makes early on is that both the victims of the introductory brutal murders were not your typically nice girly-girls. Camille, the traumatised protagonist carrying a burden from her past was herself not a nice girl. Amma, her deceptive half-sister manipulates the nice girl act to defy her controlling mother. But perhaps the most incisive critique on the whole ‘Be a nice girl’ culture, in fact the whole ‘nice’ culture — nice folks, nice manners, nice homes, nice towns — comes in the form of Adora’s character and the manner in which beneath the whole veneer of nice, a whole town is complicit in damning secrets and not-so-nice acts. At one point early on in the show, Adora tells her firstborn Camille, with whom she has a strained relationship (to put it mildly), “I just want things to be nice with us but maybe I don’t know how..” Interestingly it is this very notion of ‘nice’ that becomes the most oppressive and deceptive experience of young Camille, and later Amma’s growing years.

This ‘Culture of Nice’ is in fact the pervasive ‘Culture of Silence’ that women all over the world, particularly in India, are all too familiar with. 

It takes different forms, but always towards the same goal — to silence the not-so-nice details of what the experiences; sometimes intimate experiences of women might be. This Culture of Silence is propagated from the child’s earliest experience of being parented by society in general. Amongst the values that girls receive in our early years — apart from those of being obedient, dutiful, respectful, homely — we also receive the twin headed Chimera in the form of shame and guilt.

“Have some shame!”

“Oh for shame!”

“Shameless!”

“Shameful!”

“Ashamed.”

“Do not bring shame upon…”

Different phrases in different languages, but always with the same implication. Shameful things happen to girls who are not nice and that brings ‘shame’ on the family or everyone associated with the girl. And nice folks do not talk about these things. Nice folks go on as if nothing has happened.

It is this culture of silence that women across the world today, are calling out in many different ways. Whether it is the #MeToo movement or a show like Sharp Objects; or on a lighter and happier note, even a film like Veere Di Wedding punctures this culture of silence, quite simply by refusing to be silenced and saying the not-nice things, or depicting the so called ‘unspeakable’ things that could happen to girls. By talking about the unspeakable, you rob it of the power to shame you; you disallow the ‘Culture of Nice’ to erase your experience. You stand up for yourself and you build your own identity.

And this to me is the most liberating aspect of being an actor, and even just a girl at a time when shows like Sharp Objects and Big Little Lies (another great show on Hotstar Premium), and films like Veere Di Wedding and Anaarkali Of Aarah are being made.

The next time I hear someone say, “Nice girls don’t do that!”, I know what I’m going to say — I don’t give a shit about nice. I’m just a girl! And that’s okay!

Swara is a an award winning actor of the Hindi film industry. Her last few films, including Veere Di Wedding, Anaarkali of Aaraah and Nil Battey Sannata have earned her both critical and commercial success. Swara is an occasional writer of articles and opinion pieces. The occasions are frequent :).

Watch the trailer of Sharp Objects here:

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This article was published by the Scroll marketing team with Swara Bhasker on behalf of Hotstar Premium and not by the Scroll editorial team.