The Unbearable Wrongness of the Impeachment Order

Bar & Bench April 29 2018

Suchindran BN

The Chairman of the Rajya Sabha has escalated a constitutional crisis by rejecting the opposition move to impeach the Chief Justice of India. While doing so, he has undermined the Constitution and the procedure established by law, not only procedurally, but also substantively, by arrogating to himself power that he does not possess under the Constitution or the law.

The procedure for removing a judge of the Supreme Court is laid down in Article 124(4) of the Constitution and states,

“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.”

Parliament has enacted the Judges (Inquiry) Act, 1968 (‘the Act’) to regulate the procedure for the presentation of an address and for the investigation and proof of misbehaviour or incapacity of a judge under Article 124(5).

The order passed by the Chairman of the Rajya Sabha examines on merits the allegations against the Chief Justice mentioned in the ‘impeachment’ motion. Under Section 3(2) of the Act, that power is to be exercised by the Committee to be appointed by him consisting of a Supreme Court judge, a Chief Justice of a High Court, and a distinguished jurist who will investigate and provide proof of misbehaviour of the judge.

If the committee finds substantive proof, the test of “proved misbehaviour” in Article 124(4) is met, and the matter is then sent to the houses of Parliament, else the matter decisively ends and is closed.

In the present case, constitutionally and legally, the Chairman’s order should have ended with para 4 of his order where he finds that the notice has been signed by 64 members, well above the requirement of 50 members under Section 3(1)(b) of the Act.

However, Naidu goes on to conclude that “Considering the totality of facts, I am of the firm opinion that it is neither legal, nor desirable, nor proper to admit the motion on any one of these grounds.”

It is submitted that this level of review and examination is beyond his purview, and only the committee constituted in terms of the Judges (Inquiry) Act 1968 can conduct such an examination and reach such a conclusion.

Further, he relies on a selection of the judgment of the Supreme Court in Krishna Swami v. Union of India (1992), without noticing that the extract is from the dissenting judgment of Justice K. Ramaswamy.

According to the Constitutional law scholar HM Seervai, the first step in ascertaining the ratio decidendi which is the rule of law on which a decision is based is to exclude dissenting judgments. Hence, the law ‘declared’ in a dissenting judgment cannot be the law declared by the Supreme Court for the purposes of Article 141 and has to await acceptance by a larger bench of the Court.

Moreover, the Chairman in his order (in para 11) states that the standard to be applied to “proved misbehaviour” under Article 124(4) is the criminal law standard of “beyond a reasonable doubt.”

The reliance on In re Mehar Singh Saini (2010) is also misplaced as that case  clearly held that the word ‘misbehaviour’ is to be liberally construed wider than ‘misconduct’ and would include within its ambit acts that were was not expected of a person holding constitutional office, and conduct which would “erode the faith and confidence of the public at large in such constitutional office.”

Now, this begs the question whether this is the application of mind and law to be expected of a constitutional functionary?

The logical fallacy of accepting his conclusion is that the allegations against the judge sought to be impeached must be proved by the members of the Rajya Sabha who move the motion. This would be akin to putting the cart before the horse in constitutional terms.

With due respect, it is this conclusion that is clearly undesirable, illegal, and to borrow the words of  Seervai again be "clearly wrong and productive of the greatest public mischief.”

That Venkaiah Naidu, disregarding the fact that the actual impeachment of Chief Justice Dipak Mishra is a numerical impossibility considering the numbers that the ruling and other parties command in both houses of Parliament, has still gone on to pass such an order is shocking and will only serve to undermine Parliament as an institution.

It is now for the judiciary to resurrect the principle that the Constitution provides for the rule of law, not men, or in this case, a man regardless of the high constitution office he holds and has brought into disrepute by his actions.

Unfortunately, this kind of behaviour has been seen in many constitutional functionaries of late. The parallels are too recent and interconnected to discount a conspiracy by the Government to undermine the Constitution itself.

The recent controversy involving the Chief Justice’s power as ‘master of the roster’ which precipitated the present crisis; the unilateral exercise of power by the speaker of the Lok Sabha to certify money bills regardless of the content of the bill and the protest of the opposition which is pending before the Supreme Court in the Aadhaar Case; and the Chairman’s refusal to admit the present motion for removal of the Chief Justice are all examples of the hubris of the government.

This is also indicative that it time to consider expressly circumscribing the discretionary powers of the Chairman of the Rajya Sabha, and the Speaker of the Lok Sabha

The basic premise of democracy is that it is the rule of the majority, subject to constitutional and legal rights. The former is the domain of Parliament, the latter the subject matter of the constitutional courts.

The rule of the majority is expressed by the elected representatives of the people, and the government that commands a majority in the Lok Sabha. But the right of the opposition to raise issues and make their point cannot be scuttled by the Speaker or Chairman in a working democracy.

Venkaiah Naidu and the judges who would now have to rule on this issue would do well to remember and reflect on the words of former Supreme Court Justice KK Mathew, albeit in another context when he stated that,

“when a procedure is prescribed by the Constitution or the laws for depriving a citizen of his personal liberty, we think it is our duty to see that the procedure is rigorously observed, howsoever strange this might sound to some ears.”

What applies to personal liberty, applies to democracy as well. Unfortunately, the acts of various constitutional authorities after the (in)famous press conference by the four Collegium judges in January have only gone to support their view that there exists a clear and present danger to democracy in this county. Democracy cannot survive without a free and independent judiciary, neither can it survive without a working and functioning parliament governed by parliamentary procedure, and not governmental machinations and arrogance.

Suchindran BN is an advocate at the Supreme Court of India. He was formerly an Associate Fellow of the Vidhi Centre for Legal Policy

The views expressed in this article do not necessarily reflect the opinions of Bar & Bench. Bar & Bench does not take responsibility for the same.

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