Open Forum
New
Delhi, 4 May 2018
Impeachment Politics
CHALLENGE TO JUDICIARY
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
(Copyright, India
News & Feature Alliance)
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