IMPEACHMENT OF JUDGES

( REMOVING JUDGE IS MORE DIFFICULT THAN THE GOVERNMENT

ITSELF)

Om Prakash Yadav
omjiyadav@gmail.com

omprakashbas@yahoo.com

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 arethe 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. Ram swami 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.