Impeachment Crisis: Battle for Soul of Constitution

There is an urgent need for an alternative procedure for the removal of a High Court or Supreme Court judge.

For the first time in India’s history, an impeachment motion has been moved against the incumbent Chief Justice of India, Dipak Mishra. His conduct as Chief Justice has provided enough grounds to justify an investigation, not least because he seems to have lost the confidence of his own brethren, as evidenced by the Press Conference held by the other senior ‘collegium’ judges of the Court.

The case is likely to raise many complications, since the process has previously involved the administration and a great deference to the advisory powers of the office of the Chief Justice at all stages.

Although his impeachment is unlikely to succeed considering the timelines involved and the parliamentary and judicial hurdles that have to be overcome, it is significant and necessary that the process initiated should be taken to its proper conclusion, in the absence of any other disciplining procedure.

It is important to note that the misconduct is not and cannot be judged by any judicial decision that he has rendered or participated in. However, it can involve his conduct in relation to the case, which is what has been alleged in the petition presented to the Chairman of the Rajya Sabha by the opposition parties.

For Lack of an Alternative...

One of the criticisms of this particular case of impeachment has been that this is involving the judiciary in political battles. This is true, but the only process prescribed in the constitution is essentially political, subject to judicial inquiries provided for in the Judges (Inquiry) Act, 1968 which itself is initiated by a political officer (either the Lok Sabha speaker or Rajya Sabha Chairman).

In the absence of an alternative, the only constitutional route open is the process provided for in Article 124(4) read with the Judges (Inquiry) Act, 1968 and rules thereunder. Interestingly, Article 124(4) provides for a process analogous to impeachment; the word is actually used only in relation to removal of the President in the Constitution. In the latter case, the process would be entirely political without involvement of a judicial inquiry.

There is an urgent need to consider an alternative disciplinary procedure that has also been highlighted by the curious case of Justice Karnan of the Madras High Court, which the Supreme Court was forced to consider and act upon in the absence of any other alternative. An alternative to the parliamentary process for removal of a High Court judge or Supreme Court judge was also suggested by Justice Chelameswar, the second senior-most justice of the Supreme Court, in his interview with Karan Thapar at the Constitution Club of India a few weeks ago.

In the United Kingdom, it was declared by the report of the Joint Committee on Parliamentary Privilege (1999) that the ‘the circumstances in which impeachment has taken place are now so remote from the present that that the procedure may be considered obsolete’. This was following the Select Committee on Parliamentary Privilege (1967) that recommended that the right to impeach should be formally abandoned, which was reiterated by the third report from the Committee on Privileges in 1976-77. It must be remembered that the process of impeachment in Common law is for all public personalities.

In India too, this process has become virtually impossible as the number of Constitutional Court judges has seen a drastic increase since the original enactment of the Constitution. The process was meant to be an effective deterrent against errant behaviour by judges while preserving their judicial independence from subtle or direct intimidation by the other branches of government. But the impossibility of the procedure has emboldened judges to deviancy without any fear of repercussions. This is a threat to the very basis of our Constitution, which the judges of the High Court and Supreme Court are charged to interpret and protect as the sentinels on the qui vive.

Ball Is In Rajya Sabha Chairman’s Court

The gauntlet has been decisively thrown down. It is now up to the office of the Chairman of the Rajya Sabha to admit the motion and to initiate the procedure under the Judges Inquiry Act. Any delay will be greatly subversive to the constitutional scheme. It is imperative that the law and procedure is followed to the letter and the judiciary not intervene to create any hybrid procedure as it sometimes tends to do.

The next step will be to nominate the 3-member committee consisting of a Judge of the Supreme Court, a Chief Justice of a High Court and an distinguished jurist. The nomination of the Chairman of the Committee who has to be a Supreme Court judge will cause problems since the next four senior-most judges have publicly expressed their disagreement with the Chief Justice and it might be inappropriate under the test of bias to nominate any of them.

The search will have to begin from the 6th senior-most Justice of the Supreme Court who is Justice Arjan Kumar Sikri. It should be anticipated that the judges of the Supreme Court might be reluctant to accept the appointment against their own sitting Chief Justice while he continues to exercise considerable administrative powers over them.

A Battle for the Soul of the Constitution

Constitutionalism is not born from easy cases, but from hard ones. It is of course strengthened by the conduct of those appointed to man the legislative, executive and judicial branches; but sometimes it is also the strengthened by the manner and means in which the constitution mechanism are evolved to deal with deviancy from constitutional principles. Make no mistake about it, this is a battle for the soul of the Constitution and those who recommend that judicial independence requires putting the matter in abeyance are only postponing the inevitable battle to save the judicial independence from the hubris of high judicial office.

As Justice Chinappa Reddy, one of our finest and most conscientious judges, said in relation to judicial independence in his book ‘The Court and the Constitution of India’:

Independence of the judiciary is not a luxury, it is a constitutional necessity. It is necessary not merely to adjudicate upon the dispute between parties and settle their disputes, but is a constitutional imperative to sustain and stabilize democracy by keeping the Parliament and the executive within bounds of their constitutional authority and preventing Parliament from degenerating into an autocracy and the executive into a dictatorship. It does not however mean that the judiciary is to become a judicial oligarchy. The people and the Parliament will take care of that.

I would emphasise and commend the last line. Parliament must ensure it as the representative body of the people. The ball is now in the political court of the Chairman of the Rajya Sabha. It will return to the judicial court of the committee once constituted and the final parliamentary court provided in Article 124 and then the President. It is imperative that all constitutional functionaries operate as they are meant to within the confines of the oath that they have prescribed in the name of the Constitution. As BR Ambedkar said in a speech to the Constituent Assembly:

“Indeed, if I may say so, if things go wrong under the new Constitution the reason will not be that we had a bad Constitution. What we will have to say is that Man was vile.”

If the Constitutional functionaries operate as they are meant to, then irrespective of the result of this impeachment (or guilt) of the incumbent Chief Justice, we will be able to respond with a clear conscience and say that “Man is not (yet) vile!” The alternative will be a setback and regression for our constitution and our republic.

(The writer is an advocate and associate fellow at Vidhi Centre for Legal Policy. The author tweets @suchindranbn. This is an opinion piece and the views expressed above are the author’s own. The Quint neither endorses nor is responsible for them.)

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