Impeachment of Judges

IMPEACHMENT OF JUDGES
(REMOVING JUDGE IS MORE DIFFICULT THAN THE GOVERNMENT ITSELF)

The letter written by the CJI (Chief Justice of India) to the PM seeking his intervention in initiating impeachment proceedings against a sitting Judge of Calcutta HC, has triggered a debate again regarding corruption in higher Judiciary and its impunities. We have seen removal of Governments and PMs so many times, but removal of HC and SC Judges has not been so far heard after the Constitution of India came into force in 1950. Independent India has however witnessed one impeachment, when Justice Shiv Prasad Sinha of Allahabad High Court was removed by the then Governor General of India, C. Rajagopalachari in 1949 on the recommendation of the Federal Court. Reasons for this situation are simple, the impunity given to the Judges in the Constitution.

The corruption in higher Judiciary and disciplinary action against the HC and SC Judges has again become talk of the day following the unprecedented move of the CJI K.G.Balakrishan in which he directly wrote to the PM that Justice Soumitra. Sen, sitting Judge of Calcutta HC be removed for his ‘Misconduct. The CJI has given detailed information about Justice Sen’s misconduct when he was appointed receiver by Justice A.N. Roy in Steel Authority of India vs. Shipping Corporation of India case in 1993.

The three Judge panel comprising A.P. Shah C.J of Madras H.C, A.K. Patnaik, CJ of MP HC and R.M. Lodha of Rajasthan HC inquired into the charges levelled against Justice Sen and found them true. The panel submitted its report in February, 2008. On March, the 16th, the Collegiums of the apex Court comprising of CJ himself, J.B.N. Agarwal and J. Asok Bhan asked Justice Sen either to resign or to opt for voluntary retirement, but the unrelenting Judge refused to comply with, which forced CJI to resort to this unprecedented move. The move is unprecedented, because neither there is any provision in the constitution about such recommendation nor before this, any CJI has taken such ‘extreme step’. In fact Article 124(4) of Indian Constitution provides for removal of HC and SC Judges. This Article says ‘A Judge of Supreme Court shall not be removed from his office except by an order of the President passed after an address by each House of Parliament supported by a majority of the total number of 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.’ There is no separate provision for removal of HC Judges and Article 217(1)(b) provides for this and says ‘ a Judge may be removed from his office by the President in the manner provided in clause(4) of Article 124 for the removal of a Judge of the Supreme Court’. This is how the processes of removal of High Court and Supreme Court Judges are the same. The above Article of the Constitution provides for impeachment, whereas; Judges (Inquiry) Act, 1968 determines the process of impeachment.

According to this Act, the impeachment of a Judge can be done only by Parliament and impeachment can be initiated after a motion addressed to the President of India is signed by at least 100 members of the Lok sabha or 50 members of Rajya Sabha. Such is the process and such is the impunity. Such Judicial impunity has been conferred on Judiciary for the sake of its independence. The idea is perhaps taken from England. The above provision is similar to the rule prevailing in England, since the Act of Settlement, 1701, to the effect that though Judges of the Superior Courts are appointed by the Crown, they do not hold office during his pleasure, but hold their office ‘on good behaviour’ and the Crown may remove them only upon a joint address from both Houses of Parliament.

Any way the credit must be given to CJI, who could take such extra-ordinary step, because after all, extra-ordinary situation demands extra-ordinary steps. But unfortunately, the government was sitting over it as it was written two months ago and could only be known to public through media. This development has again triggered a debate on corruption in higher Judiciary and its overall functioning including the appointment procedure in the higher Judiciary.

Before any debate on this issue, it should be clearly borne in mind that above cumbersome procedure of impeachment and other judicial impunities have been enshrined in the Constitution for making Judiciary independent.

INDEPENDENCE OF JUDICIARY- the independence is guaranteed our Constitution and the concept has been borrowed from the US Constitution. Article III of US Constitution guarantees Indepenendece and Supremacy of Judiciary in United States. Independence of Judiciary is the tenet of Democracy and therefore; even Russian Constitution of 1993(Chapter-7 Section 120-122) also guarantees independence of Judiciary in Russia. In fact section 124 of the Russian Constitution says ‘Judges shall posses immunity and criminal proceedings may not be brought against a Judge except as provided for by federal law.

In India, this independence and limited Judicial Supremacy are enshrined in the Constitution and are expressed in (a) Methods of appointment of Judges (b) process of impeachment and (c) power of judicial review. Now, if all these provisions of the Constitution are analysed, inference can easily be drawn that the problems lay here themselves and so do solutions.

(a) APPOINTMENT- Articles 124 and 217 provide for appointment of Judges of SC and HC respectively. They clearly stipulate that the appointments have to be made by the President in consultation with CJI. The word ‘consultation’ has been always a matter of dissent and controversy. In fact, when A.N. Ray was appointed as CJ after superseding three senior Judges namely Hegde, Grover and Shelat, there were a lot of uproar in Judicial community including the Bar council of the apex Court. They argued that Judges have been superseded owing to their judgement in Keshavanand case (AIR 1973 SC) which went against the Government. Gradually the discretion of Executive in matters of appointment of Judges started diminishing. In 1993, a land mark judgment came from Supreme Court in ‘Advocates on record vs. union of India’ case. The apex Court ruled that the recommendations for appointment of Judges in HC and SC will be made by collegiums of three Judges and shall be in a way binding on the Government. After a ‘presidential reference’, the number in the collegiums was increased from three to five. This judgment was landmark because it took virtually all discretionary powers of the Executive in matters of appointment of Judges in higher judiciary. Thus the word ‘consultation’ became ‘concurrence’. Some people in legal domain argue that it was a dangerous development and was against the principles of the Constitution itself. How can a person or a group of persons appoint themselves which goes against the ideas enshrined in Article 311? They opine that there must be a transparent and justifiable procedure for such appointments. There are instances where persons from one family are becoming Judges for two to three generations. The judicial community of higher Judiciary is becoming an elite club of few ‘privileged families’. Candidly, it is not what ‘independence’ meant for.

(b) IMPEACHMENT- The process of impeachment as discussed earlier in this Article clearly indicates, that it is a cumbersome process and this is why in 50 years of our constitution not even a single Judge could be removed. In 1991, the impeachment proceedings for removal of Justice V. Ramaswami could not be carried due to abstention of Congress party in the voting. The process of impeachment is laid down in Judges (Inquiry) Act, 1968 which says that even if the motion is accepted, the presiding officer of the House has to constitute a three Judge committee to again inquire into the matter. After receiving the report, the motion will be put to voting, which requires 2/3rd number. Thus falling of Government (no confidence motion) which requires a simple majority only, whereas; removal of a Judge requires 2/3rd majority. That is why, it is truly said that it is easier to decide the fate of 100 billion people by way of forming and toppling Governments than removing a Judge. In our country, laws have sent many ministers and bureaucrats behind the bars on charges of corruption, but what to talk of sending Judges to jails, not even a single Judge has so far been impeached. Instances of corruption in higher judiciary are not unheard of. The ‘Transparency International’ in its report of 2007 has counted judiciary as the third most corrupt institutions in India, an inference totally in contrary to the common perception.

The former CJI Y.K. Sabarwal himself is in the eyes of storm for his judgements pronounced in ‘Delhi Sealing Case’, which allegedly benefitted his son. When a report in this regard appeared in one Newspaper, a suo motto contempt proceeding was initiated and the concerned reported was sought to be punished. The Contempt of Court Act, 1971, which itself is not yet codified, is another tool which sometimes is used to gauge the voice of dissent.

In another infamous case, Vigilance department of UP Police exposed misappropriation of 23 Crore rupees from GPF account of Class III and IV employees of Ghaziabad Civil Court. One of the accused arrested in this connection, made startling revelation that he has parted the money both in cash and kind, with one sitting Judge of SC, ten Judges of HC and 23 Judges of lower Courts. The investigation is not proceeding as Police cannot interrogate Judges without the consent of SC, though such protections are not given in Judges (Inquiry) Act. The matter is still pending with the apex Court and CJI has to convince the citizens of this Nation, as to whether there is equality before the law or not. Such corruption charges are often covered beneath the carpet in the name of Judicial Independence and impunity.

Names of two Judges of Haryana High Court figured in a case in which one law officer of Haryana sent Rs 15 lakh to them. Matter has been referred to CBI by the apex Court. List is long and result is dismally naught.

It is easy preaching than done. The question being asked by common citizen that who will judge the Judges? Every one advocates for transparency and delegation of powers, but up to him only. CJI reacted sharply on provision of RTI Act by saying that it does not apply to them, as they are the Constitutional authorities. But the same authorities preach others about the benefits of RTI in detail and reprimands for not complying with the Act. Time has come to make introspection into the system so that the hope of millions of people of this country could be protected from being torn apart.

REMEDIES:

1. The provisions of RTI should be made applicable to all components of functioning of Judiciary. Accordingly, suitable amendments in RTI Act, 2005 can be made.

2. The procedure of selection of Judges should be made more transparent and justifiable. Panel of Judges can be made well in advance before recommendation and be known to public by way of websites or media. Idea of setting up of a National Judicial Commission can also be made into reality, after all if you are required to go for a test for becoming a clerk, why does selection of Judges not require any test. An all India test might also be conducted to select Judges of Higher judiciary.

3. The Government is sitting over the Judges (inquiry) bill, 2006 for more than two years, therefore it should be passed, but before that necessary amendments are required, because the concept of ‘brother judges’ doing inquiry has proved ineffective if not futile.

4. The contempt of Court Act, 1971 be amended suitably, because healthy criticism of any institution is generally beneficial for the system itself in the long run. The Judiciary should prepare itself for listening to its criticism and bring about change by itself, a change though painful but helpful.