Removing a Supreme Court Judge: Can India Check a Venomous Congress and a Mischievous Kapil Sibal? Yes!

Why should a political party be so venomous, and its leader so mischievous, towards a chief justice in the supreme court? The Congress and Kapil Sibal could answer: “That’s our hope for survival”.   

On the 20th of this month, 64 members of Rajya Sabha got together and presented a proposal – called a motion – to Rajya Sabha Chairman Venkaiah Naidu, for removing Justice Dipak Misra, the current chief justice in the supreme court.  It is a tough long-drawn process to remove a serving judge of the supreme court or of a high court by force of law. Newspapers call that process impeachment.

The Constitution permits removal of a judge of the higher judiciary on grounds of “proved misbehaviour or incapacity”.  The 64 proposers who sought removal of Chief Justice Misra were drawn from seven Opposition parties, led by the Congress party. Supreme court lawyer, Congress leader and Rajya Sabha member Kapil Sibal who was one of those 64, looked a chief architect and proponent of the impeachment move.

Chairman Venkaiah Naidu consulted some experts in law and quickly rejected the motion for impeachment. So that proposal died.

The Congress party, principally led by Kapil Sibal on this issue, has dared a dubious act doomed to fail anyway.  First, there was no cause for removing Chief Justice Misra, no "misbehaviour or incapacity".  Second, the Opposition parties can never gather the needed special majority of members in either House of Parliament to approve the impeachment motion, if the voting day comes.  Third, there is something to be noted in passing but it is real. Chief Justice Misra will retire on 2^nd October 2018, in less than six months - mostly resulting in the dropping of any impeachment proceedings midway because of his retirement. Then why did the Congress party and Kapil Sibal go ahead on their idea of removing the Chief Justice of India? Because the party has turned vicious and its MP villainous. They have their reasons.

Anyone sees that some observations, orders and judgements rendered by the supreme court, especially Justice Misra, in recent times are not relished by the Congress party and its lawyer Kapil Sibal.  They are upset because if the court had done things or issued orders they wished, they would be politically benefitted and could also make propaganda against the ruling BJP which has been widely winning elections across India. The Congress is now angry and frustrated with the ruling party and with the supreme court headed by its present chief justice. So the Congress would be surely and stealthily behind the 64 members of Rajya Sabha in their action against Chief Justice Misra. Of course, Kapil Sibal says that those members were not acting at the bidding of their parties and were exercising their Constitutional rights to seek removal of a judge.  Are you not laughing?

The Congress party knows that the very commencement of impeachment proceedings against a judge of the higher judiciary, especially a straight judge, will deeply disturb and embarrass him. The judge might also stay away from the court room during the pendency of those proceedings.  That is what the Congress party wanted Chief Justice Misra to face, and perhaps do, with a mere beginning of the impeachment process if Chairman Venkaiah Naidu would admit the notice of motion.  The Congress and Kapil Sibal could attempt what they wished because the present law gives them scope for it. Here is how.

Under the law 50 members of Rajya Sabha, or 100 members of Lok Sabha, may sign and present a notice of motion for removing a judge.  After the Rajya Sabha Chairman or Lok Sabha Speaker admits that notice of motion, it is not put to vote in either House straight way. The Chairman or Speaker is required to form a three-member inquiry committee consisting of a sitting judge of the supreme court, a sitting chief justice of a high court and a jurist.  Keeping in view the notice of motion, the inquiry committee will frame specific charges against the judge and consider his defence. Finally, the committee will report if the judge is guilty of any charge or not.

If the inquiry committee reports that the judge is not guilty of any charge against him, the proposal for impeachment cannot continue and that is the end of it. If the committee reports he is guilty of any charge, then Rajya Sabha and Lok Sabha will vote to say if the judge is to be removed or not.  For a successful impeachment, both the Houses need to vote separately and favouring the removal, after which the President issues a formal order removing the judge.

The law prescribes a tough special majority of members in each House for impeachment to succeed.  First, at least a simple majority of the total membership of that House should be present when the vote is taken.  Next, approval of a two-thirds majority of the members present and voting is needed to consider the motion as passed in a House. 

Rajya Sabha has 245 members and Lok Sabha, 545 members. All the members of each House of Parliament would be present in their House when voting on impeachment takes place, since that moment is important. With the ruling NDA on the other side, the Congress party and its allies can never get anywhere near winning numbers in either House on an impeachment motion.  So their attempt to bring down Chief Justice Misra was destined to fail.  The Congress party and Kapil Sibal knew it well. So did the ruling party and everyone who studied law. Still the Congress party could abuse the law and try its luck for a wicked purpose.

We should now discover that our law for impeachment of judges is imperfect in one aspect, and it can be cured with just one change in The Judges (Inquiry) Act, 1968.  That change, when done, will require that the 3-member inquiry committee for investigating any charge against a judge is to be appointed only after both Houses of Parliament, at their separate sittings, call for the constitution of that committee by passing resolutions with the support of a simple majority of members present in each House.

Such a change in the law will disable any attempt by small irresponsible groups of politicians who certainly cannot secure a two-thirds majority support in Rajya Sabha and Lok Sabha to remove a judge, but yet file a notice of motion for his removal.  They do it to give the targeted judge an embarrassing prospect of a needless investigation by an inquiry committee. The present law cannot stop any such malicious notice of motion coming from an inconsequential group of MP's, and leaves it to the wisdom of one person – the presiding officer of Rajya Sabha or Lok Sabha – to reject that notice and keep out an inquiry committee. This is not the best way of protecting an honest independent judge. The suggested change in the law will do it effectively. 

The changed law will also bring it closer to the protection given to the President of India in the Constitutional provisions which prescribe when and how the President may be impeached.  Actually, a judge of the higher judiciary also needs such an assured protection from harassment. 

      Numerous politicians, from ruling parties and from the Opposition, would be interested in many court cases with high stakes, which are often decided by high courts and the supreme court. These men and women would be upset with judicial decisions that hurt them, their close relatives and associates and their benamis. So politicians could often have their grouses against bold, independent and upright judges, but not against the President who has chiefly ceremonial duties. That means, judges of high courts and the supreme court are likely targets of frivolous and vengeful moves of impeachment.  Hence the law must give them firmer pre-emptive protection against such assaults, like the President has.

      Even a single incident of a motivated impeachment action  against a judge, if it makes some headway, is a serious blow to India’s institution of pride and honour, its judiciary. So the change in the law for removal of judges, outlined above, is crucial.  After all, when criminals outsmart policemen, policemen should quickly get the better of criminals.  

No one may imagine that this opinion is unduly harsh on the Congress party or its member Kapil Sibal.  They could not think of or ask for any action for the removal of Justice C. S. Karnan of the Madras High Court whose “misbehaviour” till his retirement was prolonged and well known. At least in a few instances, his misbehaviour was also affirmed by a seven-judge bench of the supreme court when last year it convicted him, still a high court judge, for contempt of court. You will correctly guess why the Congress party wanted to be inactive in his case. But the party has a different approach towards the respectable Chief Justice Dipak Misra because this judge remains inconvenient and, more over, for subtle reasons this judge can also be coolly treated as a political untouchable in today's India.

    There was also an instance of impeachment proceeding against a supreme court judge in which the Congress party and Kapil Sibal showed peculiar disinterest and interest, and that must be remembered. That supreme court judge was Justice V. Ramaswami.

In 1993, impeachment proceedings against Justice Ramaswami had crossed the inquiry committee stage also. The 3-member inquiry committee had found that judge guilty of misbehaviour on 11 counts, mostly financial misdeeds.  Before voting took place in Lok Sabha that judge was assisted by Kapil Sibal who, as his lawyer, addressed the House for 5 hours to defend the judge. During voting, the ruling Congress party, together with its allies, rescued that judge in a special way.  Their 205 members were present inside Lok Sabha to raise the number of votes needed for a two-thirds majority of members present, but abstained from voting. And that ensured the collapse of the motion for impeaching Justice V. Ramaswami.  Do you now have a full  view of the diabolic double standards of the Congress party and Kapil Sibal when it comes to preserving independence and uprightness among judges of the higher judiciary?

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Copyright © R. Veera Raghavan 2018