Raju Korti
The bubbling cauldron
of Indian politics has thrown up many dirty tricks over the years. Few moves,
however, can match the diabolical nature of the attempt to remove the Supreme
Court Chief Justice from office. You do not have to be aligned with any party
ideology to understand that it is a bid to politicize the highest seat of
Indian judiciary and a cynical ploy to influence the outcome of a few
politically sensitive cases.
Now that the Vice President Venkaiah Naidu has pulled the plug on the impeachment motion against CJI Dipak Misra, this political discourse may extend to the Congress-led motion challenging the Rajya Sabha Chair in the Supreme Court. In that case, the CJI will have to recuse himself being the bone of contention himself unless political prudence prevails.
That the entire move is politically orchestrated is evident given the manner in which events have unfolded since that duplicitous move by four senior Supreme Court judges who more or less complained the CJI was being partisan in allocating the cases to the bench. In simpler words, they have accused the CJI of arbitrary functioning that they interpret as “misdemeanor”.
For all the transparency that is spoken about in healthy democracies, the functioning of the apex court judges has never gone beyond the clichéd “wrongdoings”. Post the Ramaswamy fiasco in 1992, the Supreme Court revisited the issue of what constituted impeachable conduct on the part of the Judiciary. However, it offered no further light on the matter in that, it only elucidated that mere abrasive conduct on the part of a judge could not be construed to be misbehavior. It discussed the possible implications of the term and alluded it to be similar to the conditions for solicitors. In other words, it talked vaguely of misbehavior as being actions that would make them unworthy of the profession.
The Constitution has provided for the impeachment of judges on the grounds of proven misbehavior. However, the Constitution has acted in bravado while doing so as there is no mandate till date even by statute as to what constitutes ‘misbehavior’. In other words, the framers had risked the independence of Judiciary subject to any interpretation of ‘proven misbehavior’ by the Legislature. This extremely vague conditionality could have prompted a response which set the limit for judicial impropriety very low and thus, subverted judicial independence. While it could even be argued that keeping an indeterminate meaning did more for the protection of the judiciary, I believe the same approach was counter-productive to the aim of this area of Law as the ambiguous interpretation subjected the judiciary to even more frivolous complaints as there was no clear identification of the conditions to initiate impeachment.
Technically, the Chief Justice of India, like the President of India or for that matter any senior Judge, can be impeached. Article 124 of the Constitution gives the Legislature the power to act as a watchdog and a restraining agency on the Judiciary. But the process is sufficiently complex to ensure that this cannot be done frivolously, and is one of the reasons that impeachment proceedings in the past have failed each time. Not a single Judge has been impeached in India so far.
The complexity of the process is the result why the power has been exercised judiciously by Parliament in the past. It has also, thus, made it sufficiently exclusive to act as a major moral comment against the concerned Judge, even if defeated within Parliament.
There is also the argument that the very move to impeach amounts to major censure as it has been the first such move against a CJI. It will also register a deficit of trust in the Chief Justice of the Supreme Court of India. The failure to resolve the issue of the roster and the constitution of the benches is the major reason behind the move. However, The CJI is the 'master of roster'. Undoubtedly, the CJI has this power. The CJI has the authority to constitute the benches but under constitutional system every power is coupled with certain responsibilities. The power is required to be exercised not because it exists but for the purpose of achieving public good. You don't exercise the power merely because you have it.
Even if the last, seemingly improbable step in the impeachment motion is cleared, a committee will have to be constituted of one Supreme Court Judge, Chief Justice of a High Court and a distinguished jurist. This committee will then frame definite charges against the judge, in this case the CJI, in question. The Committee will function like a bench and cross examine witnesses if it so wishes.
After it completes the exercise it will submit a report to Parliament. At this stage the Committee can exonerate the Chief Justice as in this case, and the proceedings will be dropped entirely. In case the committee upholds the motion, this will have to be adopted by both Houses of Parliament with a two thirds majority. Even a joint Opposition does not enjoy this majority currently. Besides Parliament can choose not to act even if the committee finds the judge guilty. If this stage is cleared, which it has not been in earlier cases, the President is approached to dismiss the Judge. He can do so only after both the Houses pass the motion in favor of removal. This is improbable, if not impossible.
There is a not very long list of Judges who have faced such action. And a quick look shows that the impeachment proceedings have never really been completed, but at the same time have triggered resignations regardless.
Since there is no precedent in the matter, I wonder if a sitting judge of the Supreme Court can file a defamation case against the MPs should the impeachment motion fail and if he is exonerated from the charges levelled against him.
Parliamentary immunity, also known as legislative immunity, is a system in which members of the Parliament or Legislature are granted partial immunity from prosecution. Before prosecuting, it is necessary that the immunity be removed, usually by a superior court of justice or by the Parliament itself.
Too many ifs and buts but I am inclined to believe that the Constitution is not very clear on this unless there is an impending scenario of a clash between Legislature and Judiciary. A Constitutional deadlock is all that can result.
Now that the Vice President Venkaiah Naidu has pulled the plug on the impeachment motion against CJI Dipak Misra, this political discourse may extend to the Congress-led motion challenging the Rajya Sabha Chair in the Supreme Court. In that case, the CJI will have to recuse himself being the bone of contention himself unless political prudence prevails.
That the entire move is politically orchestrated is evident given the manner in which events have unfolded since that duplicitous move by four senior Supreme Court judges who more or less complained the CJI was being partisan in allocating the cases to the bench. In simpler words, they have accused the CJI of arbitrary functioning that they interpret as “misdemeanor”.
For all the transparency that is spoken about in healthy democracies, the functioning of the apex court judges has never gone beyond the clichéd “wrongdoings”. Post the Ramaswamy fiasco in 1992, the Supreme Court revisited the issue of what constituted impeachable conduct on the part of the Judiciary. However, it offered no further light on the matter in that, it only elucidated that mere abrasive conduct on the part of a judge could not be construed to be misbehavior. It discussed the possible implications of the term and alluded it to be similar to the conditions for solicitors. In other words, it talked vaguely of misbehavior as being actions that would make them unworthy of the profession.
The Constitution has provided for the impeachment of judges on the grounds of proven misbehavior. However, the Constitution has acted in bravado while doing so as there is no mandate till date even by statute as to what constitutes ‘misbehavior’. In other words, the framers had risked the independence of Judiciary subject to any interpretation of ‘proven misbehavior’ by the Legislature. This extremely vague conditionality could have prompted a response which set the limit for judicial impropriety very low and thus, subverted judicial independence. While it could even be argued that keeping an indeterminate meaning did more for the protection of the judiciary, I believe the same approach was counter-productive to the aim of this area of Law as the ambiguous interpretation subjected the judiciary to even more frivolous complaints as there was no clear identification of the conditions to initiate impeachment.
Technically, the Chief Justice of India, like the President of India or for that matter any senior Judge, can be impeached. Article 124 of the Constitution gives the Legislature the power to act as a watchdog and a restraining agency on the Judiciary. But the process is sufficiently complex to ensure that this cannot be done frivolously, and is one of the reasons that impeachment proceedings in the past have failed each time. Not a single Judge has been impeached in India so far.
The complexity of the process is the result why the power has been exercised judiciously by Parliament in the past. It has also, thus, made it sufficiently exclusive to act as a major moral comment against the concerned Judge, even if defeated within Parliament.
There is also the argument that the very move to impeach amounts to major censure as it has been the first such move against a CJI. It will also register a deficit of trust in the Chief Justice of the Supreme Court of India. The failure to resolve the issue of the roster and the constitution of the benches is the major reason behind the move. However, The CJI is the 'master of roster'. Undoubtedly, the CJI has this power. The CJI has the authority to constitute the benches but under constitutional system every power is coupled with certain responsibilities. The power is required to be exercised not because it exists but for the purpose of achieving public good. You don't exercise the power merely because you have it.
Even if the last, seemingly improbable step in the impeachment motion is cleared, a committee will have to be constituted of one Supreme Court Judge, Chief Justice of a High Court and a distinguished jurist. This committee will then frame definite charges against the judge, in this case the CJI, in question. The Committee will function like a bench and cross examine witnesses if it so wishes.
After it completes the exercise it will submit a report to Parliament. At this stage the Committee can exonerate the Chief Justice as in this case, and the proceedings will be dropped entirely. In case the committee upholds the motion, this will have to be adopted by both Houses of Parliament with a two thirds majority. Even a joint Opposition does not enjoy this majority currently. Besides Parliament can choose not to act even if the committee finds the judge guilty. If this stage is cleared, which it has not been in earlier cases, the President is approached to dismiss the Judge. He can do so only after both the Houses pass the motion in favor of removal. This is improbable, if not impossible.
There is a not very long list of Judges who have faced such action. And a quick look shows that the impeachment proceedings have never really been completed, but at the same time have triggered resignations regardless.
Since there is no precedent in the matter, I wonder if a sitting judge of the Supreme Court can file a defamation case against the MPs should the impeachment motion fail and if he is exonerated from the charges levelled against him.
Parliamentary immunity, also known as legislative immunity, is a system in which members of the Parliament or Legislature are granted partial immunity from prosecution. Before prosecuting, it is necessary that the immunity be removed, usually by a superior court of justice or by the Parliament itself.
Too many ifs and buts but I am inclined to believe that the Constitution is not very clear on this unless there is an impending scenario of a clash between Legislature and Judiciary. A Constitutional deadlock is all that can result.
A clear, sensible piece as always, Raju.
ReplyDeletewhen we have such a tight compartment vis a vis impeachment - why do we still try our stupid luck to impeach - just because it is available ? ? ?
ReplyDelete