All About Impeachment of CJI

Justice should not only be done, but must also be seen to be done

What is the issue?

Vice president of India/ Presiding Officer (PO) in Rajya Sabha has rejected the impeachment motion passed to remove the CJI.
It calls for understanding the whole impeachment procedure, a tool to ensure judiciary's credibility.

What are the constitutional provisions?

There is no specifically any provision in the Constitution that deals with the impeachment of the CJI.

“Proved misbehaviour or incapacity” is mentioned in Article 124(4) of the Constitution.
It is the ground for impeachment of a Supreme Court judge.
The CJI is only the first among equals.
Hence, the CJI too, like other judges of the SC and HCs, can be impeached on this ground.

What is the impeachment procedure?

The Judges (Inquiry) Act, 1968 contains details of the process.
The motion is to be signed by 50 members of Rajya Sabha or 100 members of Lok Sabha.
If it is admitted, an inquiry committee will probe the charges.
It will consist of an SC judge, a Chief Justice of an HC and a distinguished jurist.
If the charges stand proven, the motion is to be presented to each House of Parliament.
It has to be passed by a majority of the House and 2/3rds of those present and voting in the same session.
Even if the charges are proved, the Parliament is not bound to remove the judge.
Finally, the President will issue the order removing the judge.
Judge's Right - The particular Judge has the right to be heard.
However, this is not available at the time of admission of the motion.
During the inquiry, the judge has the full right to defend.

What is the complexity?

Impeachment process is neither entirely political nor entirely judicial.
It is a fine and judicious blend of the two.
Admission of the impeachment motion, constitution of inquiry committee, and its findings are in the nature of judicial processes.
But the adoption of the motion by Parliament is certainly a political process, as members do vote along party lines.
The complexity of the impeachment process has ensured that no judge has been removed so far.

What is the PO's role?

The presiding officer may admit or refuse to admit the motion.
But the PO should not ideally take over the role of the inquiry committee.
The Presiding Officer is not supposed to mechanically admit any motion.
It means that the requisite number of members having signed the motion is not the only criteria.
“Proved misbehaviour” is the ground for the removal of a judge.
But it is the job of the inquiry committee to give a finding on whether the charges are proved.
But again, the charges could sometimes be prima facie totally without substance.
In that case, the PO has the right to block the motion at this initial stage itself.

What all constitute ‘proved misbehaviour’?

The Constitution does not define ‘incapacity’ and ‘proved misbehaviour’.
The misconduct of a judge is to be proved outside Parliament before a non-parliamentary committee.
The Judges (Inquiry) Bill, 2006, defines ‘proved misbehaviour’:

wilful or persistent conduct bringing dishonour or disrepute to the judiciary
wilful or persistent failure to perform the duties of a judge
wilful abuse of judicial office, corruption, lack of integrity or committing an offence involving moral turpitude

The Judicial Standards and Accountability Bill, 2010, proposed to widen the definition of misconduct.
Under this, ‘lack of integrity’ included rendering judicial decisions for collateral or extraneous reasons.
Giving judgements or any other acts that have the effect of subverting the administration of justice.
The failure to furnish a declaration of assets and liabilities or wilful giving of false information was included within ‘misbehaviour’.
The Supreme Court itself has laid down that misbehaviour is a wider term.
Therefore, if, due to a judge’s conduct, the judiciary’s credibility has suffered, it can be considered 'Misbehaviour'.

Why was the current motion rejected?

The Vice-President is not duty-bound to give reasons.
However, in this case, M Venkaiah Naidu has given detailed reasons.
He has said that misbehaviour has not been proved.
There was little merit in any of the charges laid for impeachment.
The charges are said to have been based on mere suspicion and assumption.
He says the signatories themselves are unsure of the reliability of the charges.
He has considered the implications for judicial independence if an investigation is ordered on unreliable charges.
Ruling - He cited one of the earlier Supreme Court ruling in this regard.
Accordingly, Speaker (or Chairman) has to act with utmost care, circumspection and responsibility.
Seriousness of the imputations, nature and quality of the records have to be kept in mind.
The effect on public administration of justice and independence of the judiciary are also to be considered.

Is this a case for “proved misbehaviour or incapacity”?

The main charge against CJI Misra is that he misused his control over the roster.
Cases were assigned selectively with a view to influence their outcome.
But the question is whether impeachment is an option in the absence of concrete material to establish this charge.
Evidently, the Opposition is divided on initiating impeachment proceedings.

What next?

The opposition is now planning to approach the Supreme Court.
If that happens, ideally, the CJI should not hear the matter or constitute the Bench to hear it.
In fact, no judge who is in line to be CJI in the future should sit on the Bench.
The principle of “no one shall be a judge in his own case” should be strictly adhered to.

Source: Indian Express, The Hindu