#TLIExplains: What Is The Procedure To Impeach A Sitting Judge?

The Logical Indian Crew

April 23rd, 2018 / 9:44 PM

Vice President of India, the ex officio chairman of the Rajya Sabha, M Venkaiah Naidu on Monday rejected the impeachment motion against Chief Justice of India (CJI) Dipak Misra.

Seven opposition parties led by the Congress, on April 20, had submitted the petition for impeachment with 71 signatures. Opposition sought removal under Article 217 read with Article 124 (4) of the Constitution. Charges against the CJI included selectively assigning important cases to select judges.

Congress had denied any relationship between the decision of a Supreme Court bench by the CJI to reject independent probe into Judge Loya’s death and this move.

The impeachment motion came months after four senior-most judges of the Supreme Court addressed the media regarding the issue of judicial appointment.


Process of impeachment

The process of impeaching a sitting judge is enshrined in Article 124 (4) of the Indian Constitution and the Judges (Inquiry Act), 1968 and the Judges (Inquiry) Rules, 1969.

Article 124 (4) says, “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.”

However, makers of the Constitution did not define what constitutes misbehaviour or incapacity, leaving it up to the legislature to interpret. Critics are of the opinion that this dilutes the judiciary’s independence from the legislature.

Steps to initiate impeachment are as follows:

  1. Motion to impeach can be raised in either Houses of the Parliament with the required support of 100 MPs in Lok Sabha and 50 MPs in the Rajya Sabha.
  2. The motion can be accepted or rejected by the Speaker/ Chairman.
  3. If the motion is admitted by the Speaker in Lok Sabha and Chairman in Rajya Sabha, a three-member committee, comprising a Supreme Court judge, the Chief Justice of any High Court and a distinguished jury, is set up to investigate the allegations. The distinguished jury is a judge, scholar, lawyer, etc who is nominated by Speaker/ Chairman.
  4. The committee makes its report and submits it to the Speaker/ Chairman, who then share it with the Houses.
  5. Both Houses of the Parliament then pass an ‘address to the President’, seeking removal of the judge. This needs to be passed by two-thirds majority of the MPs present in each house during the vote, and must also cross the 50% mark in both Houses.
  6. If both addresses succeed, the judge is removed by the President through a Presidential order.

In India, no judge has ever been impeached, though several motions have been moved against them. Impeachment, if successful, is a serious blow to the integrity of the concerning judge and the overall accountability of the judiciary.


What were the charges raised against CJI Misra?

As reported by Bar & Bench, the following five charges were levelled against the Chief Justice:

  1. The facts and circumstances relating to the Prasad Educational Trust case, show prima facie evidence suggesting that Chief Justice Dipak Misra may have been involved in the conspiracy of paying illegal gratification in the case, which at least warrants a thorough investigation.
  2. That the Chief Justice Dipak Misra dealt on the administrative as well as judicial side, with a writ petition which sought investigation into a matter in which he too was likely to fall within the scope of investigation since he had presided over every bench which had dealt with the case and passed orders in the case of Prasad Educational Trust, and thus violated the first principle of the Code of Conduct for Judges.
  3. That the Chief Justice Dipak Misra appears to have antedated an administrative order dated 6th November 2017 which amounts to a serious act of forgery/fabrication.
  4. That Chief Justice Dipak Misra acquired land when he was an advocate, by giving an affidavit that was found to be false and despite the orders of the ADM cancelling the allotment in 1985, surrendered the said land only in 2012 after he was elevated to the Supreme Court.
  5. That Chief Justice Dipak Misra has abused his administrative authority as master of roster to arbitrarily assign individual cases of particular advocates in politically sensitive cases, to select judges in order to achieve a predetermined outcome.

Congress leader and renowned lawyer Kapil Sibal in a press conference, called the Chairman’s rejected of impeachment motion “illegal.”

“The law lays down the procedure in case the motion to impeach a Supreme Court judge. The Chairman of the Rajya Sabha must consult an eminent jurist, a judge of the high court and the Chief Justice of India. In this case, the judges of the collegium must have been consulted as the CJI himself was under scrutiny. Hence, the decision to reject the motion is illegal,” Sibal said, reported Firstpost.

Fali Nariman, former senior advocate in the Supreme Court and President of Bar Association of India, says that the impeachment motion against CJI Misra was “rightly rejected”.

“He (Naidu) was the only statutory authority to take that decision and in my view he has rightly taken the decision. The grounds raised in the impeachment notice are not of sufficient gravity. When you have a man like the chief justice of the Supreme Court, it (impeachment notice) has to have something that is far more important than just saying he did not do this or that. The vice president has the statutory authority and he has rightly rejected the notice,” Nariman told a TV channel, reported The Indian Express.


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Written by : Pooja Chaudhuri

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