Judging the Judges: The Scope of Impeachment and its Ramifications

Law | May 11, 2018 / by Shrey Som
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Roman satirist and poet Juvenal had once raised an important question, ‘quis custodiet ipsos custodes’ or ‘who will guard the guards themselves? In light of recent events in the capital including the question of an attempted impeachment towards the senior-most Judge in the country, the words of Juvenal again hold importance. ‘How should we Judge the Judges?’ For a long time, the modern democratic world has been struggling to provide an apt solution. Early records show that impeachment was first used in its modern political sense in late 14th century (Demeter, 1969, p. 265).[1] Subsequently, impeachment laws became bolder but there was always the danger of misuse. Hence, they remained narrow in scope. The question to ponder over is one of ‘Judicial Independence’ and its extent. The National Judicial Appointments Commission (NJAC) debate in the Supreme Court did throw some light over a few issues especially the thin line between judicial independence and accountability. This article will try to understand the underlying ideas about the independence of the judiciary and the current situation regarding the impeachment proceedings initiated against the Chief Justice of India.

Francis Bacon once said, "The Place of Justice is a hallowed place, and therefore ought to be preserved without scandal and corruption."[2] Ironically he also held the highest judicial post in England but was impeached for accepting bribes. The above example is an attempt to show that no man is unblemished. That is not of great importance for a layman but a man in power can do much damage if his vices are not controlled. It can then be summarily said that every position of power in a non-despotic government must have some regulation and if need be an impeachment clause. In a three-pillar democracy like India, where the judiciary is said to work independently so as to preserve its direct corruption from the government or legislature, it becomes difficult to maintain neutral regulations[3].

The articles 124 (4), (5), 217, and 218 of the Indian Constitution along with the Judges (Inquiry) Act,1968 and corresponding rules provide the power of impeachment applicable to judges on the grounds of ‘Proven misbehavior or incapacity.’ The procedure is long involving a notice of a motion to be initiated in either house with at least 100 members in the Lok Sabha and 50 members of the Rajya Sabha as signatories, this notice of a motion must then be accepted by the speaker or chairman, (it is to be noted that the notice of the motion for removal of CJI Dipak Misra itself was rejected by the Vice-President), following which an inquiry committee is set up, if the judge is found guilty then the motion for removal of the judge can be initiated in either house and passes with support from the majority of total membership of the house and two-thirds majority of the members present and voting. No judge has been impeached by the parliament in Independent India.

The notice of the motion was rejected by the Chairman of Rajya Sabha (first time since 1970). Subsequently, a petition challenging that decision was filed in the Supreme Court but was withdrawn soon after being put before a Constitutional Bench by administrative order. While the Constitutional Bench did not answer any question regarding the administrative order, the petitioner did argue that such an order was odd and had never occurred before.[4] As of now, there has been no other significant development in these proceedings. With upcoming state elections and subsequent general election, many eminent jurists argue that the impeachment proceedings are a mere political game. Nani Palkhivala understood the political undertone of impeachment law in 1990 when he exclaimed that the impeachment process is not to be resorted to lightly and noted it to be “enormously cumbersome and is likely to bring political passions into play.”[5]

This is where the complexity comes to play, is there no way wherein political intrigues and motivations can be kept separate from judicial functioning? The impeachment laws in other countries have also suffered the same fate. The law in the United Kingdom like India is cumbersome and rarely used.[6] Many authorities (Halsbury’s Laws of England) even consider the Law to be almost obsolete. In the United States, the impeachment power is provided by article 1 of the Constitution and has been used mostly to impeach federal and district judges, in some cases governors and senators. A few presidents also have had successful impeachment proceedings brought against them (Bill Clinton, Andrew Johnson).[7]

We do not know as to the real intention of the impeachment proceedings brought about, but history does not support a successful impeachment and there seems to be no clear-cut cause for it to change. There can only be a ‘Chinese wall’ albeit one with holes, between the judicial function and political motivations. The sole objective can and should only be on how to restore people’s faith in our Judiciary.[8]  The acts of several constitutional authorities following the (in)famous press conference by four Senior Supreme Court judges in January have only strengthened their argument about a clear and present danger to democracy in the county. Democracy cannot survive without a free and independent judiciary nor will it survive without a working parliament governed by laid down parliamentary procedures and not governmental machinations and will. Now more than ever is a time for deep, collective, national introspection. Whereas for the members of Judiciary and its extended apparatus it is a time to be self-critical, a time to face the truth and working collectively to rid the Judiciary of the malaise that has come to vest it.

 

 

[1] Demeter, G. (1969). Demeter's Manual of Parliamentary Law and Procedure. Boston: Little, Brown.

[2]  Borkin, J. (1962). The Corrupt Judge: An Inquiry Into Bribery and Other High Crimes and Misdemeanors in the Federal Courts

[3] LawTeacher (2013, November). The Process Of Impeachment Of Judges. https://www.lawteacher.net/free-law-essays/constitutional-law/the-process-of-impeachment-of-judges-constitutional-law-essay.php?vref=1

[4] Krishnan, M. (2018, May 18). CJI Impeachment: How the hearing progressed in the Supreme Court. Bar & Bench. Retrieved from https://barandbench.com/cji-impeachment-supreme-court-kapil-sibal/

[5] Varma, S. (2018, April 25). Politics of Impeachment. Bar & Bench. Retrieved from https://barandbench.com/politics-impeachment/

[6] Caird, J.S. (2016, June 6). Impeachment. Briefing paper number CBP7612. Retrieved from https://researchbriefings.parliament.uk/ResearchBriefing/Summary/CBP-7612

[7] Thompson, F., & Pollitt, D. H. (1970). Impeachment of federal judges: A historical overview. North Carolina Law Review. 49 (1), 87-121.

[8] Suchindran BN. (2018, April 29). The Unbearable Wrongness of the Impeachment Order. Bar & Bench. Retrieved from https://barandbench.com/unbearable-wrongness-impeachment-order/

Bibliography

Jamieson, K., & Hennessy, M. (2007). Public understanding of and support for the courts: Survey results. Georgetown Law Journal, 95 (4), 899-902.

 Parshad, V., & Prasad, V. (1964, July- September- December). Independence of Judiciary in India. Indian Journal of Political Science, 25 (3/4), 307-312.   

 Sudarshan. R. (2008, March 25). In quest of state: Politics and judiciary in India. The Journal of Commonwealth & Comparative Politics, 28 (1), 44-69. doi:10.1080/14

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Written By Shrey Som

Law and Political Science.

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