Judges of India’s higher judiciary can be removed from office only on the ground of “proved misbehaviour” or “incapacity”, and through the constitutionally mandated parliamentary process which requires not only an absolute majority, but also a vote of two-thirds of the elected politicians present and voting in both houses in favour of the notice of motion.
Can the process of removal of a judge still be termed as apolitical? Such notice requires the signatures of 100 politicians of the Lok Sabha or 50 members (mostly elected politicians) of the Rajya Sabha. When politicians, with established political affiliation and political philosophy, need necessarily to sign such notice, then, even assuming the motives are non-political, can the process of removal of a judge be uninfluenced by identifiable political biases?
When the constituent assembly was debating the process of removal, Kuladhar Chaliha expressed discontentment over the process and termed it as not a “very safe proposition”. He observed, “If we allow this impeachment of a judge, the whole country would be rather in a ferment, and people will take sides, and in the long run, the guilty man may escape and the honest man be convicted, because of the prevailing passions and prejudices.” He was not alone. In the ongoing debate, Tajamul Husain said that “to remove a judge on the recommendation of the parliament would be wrong in principle. If the majority party in the parliament is not in favour of a particular judge, then removal will become very easy, and the judge should always be above party politics.” Undoubtedly, the same would be applicable in the reverse.
Expressing his surprise at the proposed provision, R.K. Sidhwa voiced his apprehensions by stating that “it is good to give wide powers to legislature but it will lead to all kinds of outside influences being brought to bear on the question (of removal) and no judge will ever be dismissed”. He went on to say “if we leave it to the two houses it will be difficult to remove a judge even if he is guilty” and therefore did not support the said provision.
The constitution accords equal status to all organs of democratic functioning and given the compelling need to maintain the independence of the judiciary, has not the time come to reconsider the process by which judges are removed? No judge has ever been impeached, and with the debate on who has the last word on the appointment of judges still raging, does it not also seem an opportune time to relook the same constitutional provision which deals with the removal of judges as having failed the test of time and needing immediate correction?
The turmoil engulfing the Supreme Court for the past many months came to a head with a notice of motion for removal having been filed in the Rajya Sabha against the sitting Chief Justice of India. The provision for removal as detailed in the constitution is regulated by The Judges (Inquiry) Act which a five-judge constitutional bench of the Supreme Court has held to fall within the constitutional scheme. Per the Act, when a notice of motion is presented with the requisite political signatures, “the Chairman may, after consulting such persons, if any, as may be available to him either admit the motion of refuse to admit the motion.”
No matter what anyone may argue, the statute clearly gives the chairman the power to refuse to admit a motion, as has recently been done. A five-judge bench has noted, “the contention that the Speaker (Chairman in this case, as the notice was introduced in the Rajya Sabha) is constitutionally obligated to conduct a preliminary enquiry to ascertain the veracity of the grounds made in the motion and to determine whether or not prima-facie case for investigation has been made out is devoid of substance.”
As the law currently stands, the speaker/chairman (being constitutional authorities) perform a constitutional function in deciding whether to admit or refuse to admit the motion to remove the judge. “The Constitution entrusted to the Speaker that responsibility with the expectation that he acts as a reasonable man, as stated earlier, with high degree of responsibility, considers the grounds for the removal in the motion and the record before taking a decision to admit the motion or refusal thereof.” Notably, this is not the first instance of a speaker/chairman having rejected a motion, with the first one dating back to 1970 when the motion against Justice J.C. Shah was rejected.
As is common in matters political, accusations are now flying that the chairman was motivated by his own erstwhile political association. However, such accusations have also been raised in the past and have been rejected by another constitutional bench which held that “a case of mala fides cannot be made out merely on the grounds of political affiliation of the Speaker either. That may not be a sufficient ground in the present context. At all events, as the statutory authority to deal with the matter, doctrine of statutory exceptions or necessity might be invoked.” It has been held that, while considering a motion of removal, the speaker or chairman discharges the functions of high constitutional responsibility.
Post the rejection of the motion by the chairman of the Rajya Sabha, the lingering question now is whether the decision is subject to judicial review. Notably, to prevent against hasty decisions, the process to remove a judge under the constitution is a process of several integrated steps. The first part begins with a review by the speaker/chairman of the material presented and the evidence in support of the notice of motion to establish proof of misbehaviour or incapacity, post which determination, it proceeds to a committee for investigation. The parliament plays no role in this process, which is governed entirely by provisions of the Act.
The second part begins after the committee has gathered the requisite proof and made a finding of guilt against the accused judge, which is then presented in parliament. The law as it currently stands states that, “the Constitution intended a clear provision for the first part covered fully by enacted law, the validity of which and the process thereunder being subject to judicial review.” Starting the second step, the parliamentary process begins and is protected by parliamentary privilege, not being justiciable.
Those who presented the notice of motion are on record that their fight will continue at the steps of the Supreme Court, that same institution whose majesty, dignity, honour, respect and glory they seek to preserve. The law provides a legal right to appeal and it should be exercised, albeit judiciously bearing in mind whether the benefits outweigh the harm that such politically motivated actions are likely to result in.
By no means is one suggesting that all is well with the workings of the Indian judiciary and that it’s absolutely free from outside interferences. On the contrary. When four senior judges hold a press conference, followed by repeated media interactions expressing their displeasure with functioning of the Supreme Court, succeeded by a letter expressing “threat to the very life and existence of the institution” (Supreme Court) it calls for immediate action. But that action required cannot be at the cost of the “interest of this great institution and independence of the judiciary.”
At a time when the electorate is feeling threatened by the political masters, everything within our control must be deployed towards making the public feel and believe that the judiciary will not cave to political pressure, no matter which side it comes from and will come to their rescue. For that, it is incumbent for the entire judiciary to speak the voice of reason, the voice of objectivity, the voice of pragmatism and most importantly, in one voice. A house divided is a house fallen.
Politicians on both sides are to be blamed. For those championing the cause to “save the constitution” it is equally important to save the judiciary from actions that make it the chief protagonist of their political drama. For those holding themselves as being the messiahs of the judiciary, let thy actions speak louder than the empty words that continue to threaten our constitution and democratic institutions.
In 1990, the ferociously brilliant Nani Palkhivala exclaimed that the impeachment process is not to be resorted to lightly and noted it to being “enormously cumbersome and is likely to bring political passions into play.” He also noted that the resolution passed by the lawyers associations of Bombay to initiate a motion of removal against Justice J.C. Shah was a “distinct public disservice, instead of a public service, if they have created an impression in the public mind that our higher judiciary is not worthy of public confidence and respect.”
Twenty-eight years later, Palkhivala’s words still hold true. Now admittedly is a time for deep national introspection and for those within the judiciary and its extended ecosystem to be self-critical and come face-to-face with the truth and work collectively to rid the judiciary of the malaise that has come to vest. The sole objective can and should only be on how to restore people’s faith in our judiciary so that each Indian can proudly exclaim “satyamev jayate” – truth alone triumphs.
Satvik Varma is a litigation counsel and corporate attorney based in New Delhi. A graduate of Harvard Law School, he is also licensed to practice in New York. He recently published a book titled Yes, I’m Opinionated. Twitter: @satvikvarma