In the bid to impeach Chief Justice of India, issues of constitutionalism, accountability
The Indian Express
April 24, 2018
The unprecedented rejection of the motion for impeachment has raised multiple questions, but the wider context of the unfolding spectacle includes a range of related matters. Some key questions answered.
Is there a provision in the Constitution that deals with the impeachment of the Chief Justice of India (CJI)?
Not the CJI specifically. As the CJI is only the first among equals, he too, like other judges of the Supreme Court and High Courts, can be impeached “on the ground of proved misbehaviour or incapacity” under Article 124(4). The Judges (Inquiry) Act, 1968, contains details of the process. The motion is to be signed by 50 members of Rajya Sabha or 100 members of Lok Sabha and, if it is admitted, an inquiry committee consisting of a Supreme Court judge, a High Court Chief Justice, and a distinguished jurist is to probe the charges. If the charges stand proven, the motion is to be presented to each House of Parliament and passed by a majority of the House and 2/3rds of those present and voting in the same session. So, even if the charges are proved, Parliament is not bound to remove such a judge. Finally, the President will issue the order removing the judge.
Is impeachment a political process?
It is neither entirely political nor entirely judicial, but a fine and judicious blend of the two. The process of admission of the impeachment motion, constitution of inquiry committee, and its findings are in the nature of judicial processes, but the adoption of the motion by Parliament is certainly a political process, as members do vote along party lines.
What powers does the Vice-President have with regard to admitting or rejecting a motion for impeachment?
Both the Chairman of Rajya Sabha and Speaker of Lok Sabha must conduct themselves in such a manner that their actions demonstrate their utmost impartiality. In deciding on an impeachment motion, the Vice-President should not ideally take over the role of the inquiry committee, and pass judgment on the allegations. For the first time in Indian history, an impeachment motion has been rejected at the admission stage. But at the same time, as the Presiding Officer, the Vice-President is not supposed to mechanically admit any motion just because it has been signed by the requisite number of members. In his 10-page rejection order on Monday, the Vice-President has said that misbehaviour has not been proved. While “proved misbehaviour” is the ground for the removal of a judge, it is the job of the inquiry committee to give a finding on whether the charges are proved. But again, if the charges are prima facie totally without substance, the Vice-President does have the right to block an impeachment motion at this initial stage itself.
On what grounds has the Vice-President rejected the impeachment motion?
The Vice-President is not duty-bound to give reasons — even though, in this case, M Venkaiah Naidu has given detailed reasons. There is no timeframe within which he must decide. He may form his opinion after consulting such persons as he deems fit and after considering such material as may be made available to him. Naidu has rejected the motion after finding the grounds for impeachment untenable, and based on conjectures without any empirical evidence. He has also pointed to some contradictions in the motion.
What exactly is “proved misbehaviour”?
The Constitution does not define ‘incapacity’ and ‘proved misbehaviour’. The misconduct of a judge is to be proved outside Parliament before a non-parliamentary committee. The Judges (Inquiry) Bill, 2006, defined ‘proved misbehaviour’ as wilful or persistent conduct which brings dishonor or disrepute to the judiciary; wilful or persistent failure to perform the duties of a judge; wilful abuse of judicial office, corruption, lack of integrity or committing an offence involving moral turpitude. The Judicial Standards and Accountability Bill, 2010, proposed to widen the definition of misconduct by adding that ‘lack of integrity’ included rendering judicial decisions for collateral or extraneous reasons, demanding any kind of consideration for giving judgments, and such other acts that have the effect of subverting the administration of justice. The failure to furnish a declaration of assets and liabilities, or wilful giving of false information were also included within ‘misbehaviour’.
In C Ravichandran Iyer vs Justice A M Bhattacharjee (1995), the Supreme Court itself laid down that misbehaviour is a wider term for which no straitjacketed definition may be given. It can be submitted, therefore, that if, due to a judge’s conduct, the judiciary’s credibility has suffered, it can be considered as misbehaviour. This is certainly a political question. Even conduct prior to assuming office is covered — this was why Rajya Sabha had passed the impeachment motion against Justice Soumitra Sen in 2011.
What should be the standard of proof?
The Vice-President has said the charges have not been proved “beyond reasonable doubt” — this is, thus, the standard of proof. However, expectations from judges should high. In all civil matters, the standard of proof is “preponderance of probabilities”. Both Australia and South Africa have the latter as the standard of proof in their impeachment processes for judges.
Does the judge have a right to be heard?
Yes, but not at the time of admission of the motion — that is why the Vice-President did not inform the CJI. During the inquiry, the judge has the full right to defend himself. Justice Sen even addressed Rajya Sabha after the inquiry found him guilty of “proved misbehaviour”, and the House was considering the motion for his removal.
Comments
Post a Comment