Congress is trying to estabish unanimity among the opposition parties to bring impeachment motion against Chief Justice of India, the question may arise whether the CJI can be replaced by impeachment like other judges of the Supreme Court or is the process different?.
After the independence the nation has never seen so far any judge of the Supreme Court replaced by impeachment so how difficult would it be for the CJI?
Will Congress be successful in its attempt:
Before speculating the posibilities of Congress Party’s success in its attempt, we must know the procedure of bringing the impeachement motion against Chief Justice of India.
1– Removal motion must be signed by 100 members of Lok Sabha or 50 members of Rajya Sabha has to be submitted to the Speaker/Chairman. The motion can be moved in any of the two Houses of Parliament.
2– The Speaker/Chairman holds the right to admit or reject the motion.
3– In case the motion is admitted, the Speaker/Chairman constitutes a three-member committee to investigate the charges against the judge. The Committee consists of the Chief Justice or a judge of the Supreme Court, a chief justice of a high court and a distinguished jurist.
4– If the committee finds charges against the judge to be true, the Parliament can take up the consideration of the motion.
5– The House requires to pass the motion with a special two-third majority. After passing one House (Lok Sabha/Rajya Sabha), the bill goes to the second House which also has to pass it with a special majority.
6– If the motion is passed by both the Houses, an address is presented to the President for removal of the judge.
7– In the last step, the President can pass an order removing the judge.
Since Congress and its alliance doesn’t have appropriate majority to get the impeachment motion passed in the house, the entire attempt seems nothing but far fetched attempt to tarnish the image of judiciary for its political benefit. CJI Deepak Mishra is known for his unbiased attitude and his judgement against tripple talaq is the example of abandoning the policy appeasement in the name of secularism.
What is the procedure for removal of Chief Justice of India:
Article 124(4) of Constitution of India lays down the procedure for removal of a Judge of Supreme Court which is applicable to Chief Justice as well. Once appointed, the Chief Justice remains in office until the age of 65 years whichever is earlier. He can be removed only through a process of impeachment by Parliament as follows:
A Judge of the 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 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.
Art 124(2) Proviso (b) Art 124(4), Art 124(5) and the Judges Inquiry Act 1968 is the key to understanding the complex process of the removal of a judge.
First and foremost, under Art 124, a Notice of motion, may be given by 100 members of lok sabha or 50 members of Rajya Sabha. Then, the Speaker or the chairman may refuse or accept the motion. If admitted, a committee has to be constituted.
The committee will comprise of One Supreme court Judge, chief justice of a high court, and a distinguished jurist. The committee will then Frame Definite charges against the judge based on which investigation is proposed to be held.
Reasonable opportunity will be given to judge including cross examination of witnesses. If for example, charge is of physical or mental incapacity, the committee can ask for a medical examination to be conducted. Report of the committee, is to be put forth in the house.
If the judge is exonerated of the charges, the matter ends there, there is no judicial review available. If the committee, finds the judge guilty, the house MAY take up consideration of the motion. Yes the house still has the option to proceed.
This motion needs to be adopted by both the houses and then the president can be approached for the removal of the judge Special majority is needed to adopt the motion. The house can choose not to act, even if the committee finds the judge guilty.
If parliament does not adopt the motion, despite the committee’s finding, the matter ends there. End of story, no judicial review. But if the parliament decides to act, it gives a hearing to the judge. And only then can the president be approached.
Unless both the houses approach the president, the president CANNOT remove the judge under Art 124(4). This is contrary to the popular perception being created.
What are the past instances when Supreme Court judges or HC Judges were impeached?:
V. Ramaswami, Chief Justice of Punjab and Haryana, was the first judge against whom impeachment proceedings were initiated in 1993 by a motion through the Lok Sabha. The two thirds majority for passing the motion was lost as the Congress abstained.
Soumitra Sen, Calcutta High Court Judge – He was the only judge in India history who had passed the first two hurdles of impeachment and had come close to being impeached after Rajya Sabha passed the motion of his dismissal with special majority. The charge against him was misappropriation of funds while he was appointed as receiver by the court as a lawyer. However before Lok Sabha could take up the motion for consideration, Justice Sen had resigned from office which led to the closure of the case.
Another Judge who resigned before impeachment proceedings could be initiated against him was PD Dinakaran, Chief Justice of Sikkim High Court in 2011.
Even Justice JB Pardiwala of Gujarat High Court was at the receiving end of an impeachment motion by 58 Rajya Sabha MPs after a section of the society objected to some wordings in his judgment which questioned reservation in the Constitution. Justice Pardiwala had called it “shameful” that reservation continued even 65 years after independence.
Later Justice Pardiwala removed the wordings from his judgment leading to closure of the impeachment case.