All About Impeachment of CJI

Justice should not only be done, but must also be seen to be done

What is the issue?

• Vice president of India/ Presiding Officer (PO) in Rajya Sabha has rejected the impeachment motion passed to remove the CJI.
• It calls for understanding the whole impeachment procedure, a tool to ensure judiciary's credibility.

What are the constitutional provisions?

• There is no specifically any provision in the Constitution that deals with the impeachment of the CJI.

• “Proved misbehaviour or incapacity” is mentioned in Article 124(4) of the Constitution.
• It is the ground for impeachment of a Supreme Court judge.
• The CJI is only the first among equals.
• Hence, the CJI too, like other judges of the SC and HCs, can be impeached on this ground.

What is the impeachment procedure?

• 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.
• If it is admitted, an inquiry committee will probe the charges.
• It will consist of an SC judge, a Chief Justice of an HC and a distinguished jurist.
• If the charges stand proven, the motion is to be presented to each House of Parliament.
• It has to be passed by a majority of the House and 2/3rds of those present and voting in the same session.
• Even if the charges are proved, the Parliament is not bound to remove the judge.
• Finally, the President will issue the order removing the judge.
• Judge's Right - The particular Judge has the right to be heard.
• However, this is not available at the time of admission of the motion.
• During the inquiry, the judge has the full right to defend.

What is the complexity?

• Impeachment process is neither entirely political nor entirely judicial.
• It is a fine and judicious blend of the two.
• 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.
• The complexity of the impeachment process has ensured that no judge has been removed so far.

What is the PO's role?

• The presiding officer may admit or refuse to admit the motion.
• But the PO should not ideally take over the role of the inquiry committee.
• The Presiding Officer is not supposed to mechanically admit any motion.
• It means that the requisite number of members having signed the motion is not the only criteria.
• “Proved misbehaviour” is the ground for the removal of a judge.
• But it is the job of the inquiry committee to give a finding on whether the charges are proved.
• But again, the charges could sometimes be prima facie totally without substance.
• In that case, the PO has the right to block the motion at this initial stage itself.

What all constitute ‘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, defines ‘proved misbehaviour’:

1. wilful or persistent conduct bringing dishonour or disrepute to the judiciary
2. wilful or persistent failure to perform the duties of a judge
3. 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.
• Under this, ‘lack of integrity’ included rendering judicial decisions for collateral or extraneous reasons.
• Giving judgements or any 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 was included within ‘misbehaviour’.
• The Supreme Court itself has laid down that misbehaviour is a wider term.
• Therefore, if, due to a judge’s conduct, the judiciary’s credibility has suffered, it can be considered 'Misbehaviour'.

Why was the current motion rejected?

• The Vice-President is not duty-bound to give reasons.
• However, in this case, M Venkaiah Naidu has given detailed reasons.
• He has said that misbehaviour has not been proved.
• There was little merit in any of the charges laid for impeachment.
• The charges are said to have been based on mere suspicion and assumption.
• He says the signatories themselves are unsure of the reliability of the charges.
• He has considered the implications for judicial independence if an investigation is ordered on unreliable charges.
• Ruling - He cited one of the earlier Supreme Court ruling in this regard.
• Accordingly, Speaker (or Chairman) has to act with utmost care, circumspection and responsibility.
• Seriousness of the imputations, nature and quality of the records have to be kept in mind.
• The effect on public administration of justice and independence of the judiciary are also to be considered.

Is this a case for “proved misbehaviour or incapacity”?       

• The main charge against CJI Misra is that he misused his control over the roster.
• Cases were assigned selectively with a view to influence their outcome.
• But the question is whether impeachment is an option in the absence of concrete material to establish this charge.
• Evidently, the Opposition is divided on initiating impeachment proceedings.

What next?

• The opposition is now planning to approach the Supreme Court.
• If that happens, ideally, the CJI should not hear the matter or constitute the Bench to hear it.
• In fact, no judge who is in line to be CJI in the future should sit on the Bench.
• The principle of “no one shall be a judge in his own case” should be strictly adhered to.

Source: Indian Express, The Hindu