The Judges (removal) Case
Here is a sitter of a question in the times of the Indian Premier League: Should the on-field umpires necessarily have to refer every appeal from the fielding side to the third umpire? “Absurd!” even the meanest intelligence would thunder, “what would they do then? Just count the balls?”
I have no claims of scholarship in jurisprudence. But that is my reaction to the two learned lawyer-members of the Rajya Sabha and their equally learned colleague from the august house representing them, challenging in the Supreme Court the decision of the Rajya Sabha Chairman’s rejection of the motion for removal of the Chief Justice of India. They contend that since more than 50 members signed the request as required by the Judges Inquiry Act, 1968, the presiding officer had no choice but to constitute the enquiry committee stipulated by the law. That would reduce the office of the Vice President to merely the counting and verifying signatures in such cases.
With all due respect, the Act says “The [presiding officer] may, after consulting such persons, if any, as he thinks fit and after considering such materials, if any, as may be available to him, either admit the motion or refuse to admit the same” (emphasis added). The law leaves consultation of materials and persons as also admission of the motion itself to the judgment of the Speaker of Lok Sabha or the Chairman of Rajya Sabha. It does not mandate these authorities to give reasons for their decisions either. That was the position S L Sakadhar, the respected expert on constitutional matters involving legislature, took on a talk show. Unfortunately, his feeble voice was drowned by the din created by others. The anchor, who perhaps considered herself more au fait with the current situation, did nothing to stop it. On-field umpires are not required to explain their rulings either.
But good umpires try to do so, as did M Venkaiah Naidu through a 10-page note. Despite this, referrals to the third umpire are always possible, which many captains and players avail of. The Congress legislators have done so. The objection is not to their going to court, but to use terms such as “illegal” and “arbitrary” to describe the Vice President’s decision.
The irony of the situation should not be lost. One of the presumed grounds for the removal of the Chief Justice is that he has not adequately defended the independence of the judiciary. But, the Rajya Sabha motion meant for his removal and the subsequent appeal to the Supreme Court suggest a great and hopelessly muddling overlap in the jurisdictions of the two branches of the government. One of the commonest complaints of legislatures everywhere against the judiciary is that the latter often usurps the role of making laws rather than confining itself to their interpretation. Yet, the present instance would be tantamount to an invitation by legislators to the judiciary to write the law.
That is not the only conundrum with what we commonly call impeachment of judges (technically, the Constitution uses impeachment only in reference to the office of the President; the judges’ case is called simply removal from office). The worst is the confusion inherent in the defining of the process.
Impeachment is a concept borrowed from the American Constitution. Appointments to higher judiciary in the United States are subject to confirmation by the Senate. Logically, therefore, the burden of removal of the legal appointees also rests with the authority confirming them through the process of impeachment.
We have only borrowed the impeachment half of the process but not the confirmation. That phase is often extensive and partisan, but it is mostly public and entails a discussion of the legal philosophy and past performance of the nominee. Not just the committee staff but the media do exhaustive research about the credentials of the nominees. Some of them are rejected, or take recourse to withdrawing their name if the situation so warrants. The process of educating the public is greatly served by this transparency.
Our judicial appointments in contrast appear to be shrouded in obscurity. Not many beyond the Collegium seem to know worthwhile details of the candidates’ records, leave alone their legal philosophies. In the common persons’ perception, all these are as mysterious as the generally long but difficult to understand judgments, which sometimes contain long and unrelated asides. Remember the retiring Rajasthan High Court judge who delivered a scholarly disquisition on the asexual reproduction of peacocks some years ago?
I wrote to my friend Sumitra Kulkarni who was a member of the commission appointed by the Vajpayee government to look into the working of the Constitution. She said she would raise the matter in a commission meeting. “The present procedure laid down in the Constitution for the removal of a Supreme Court or High Court judge on the ground of proven misbehaviour or incapacity is cumbersome, unworkable, unrealistic and therefore impossible” observed Justice M N Venkatachaliah, who headed the commission. That may be a coincidence, but the judiciary is as much in need of transparency as it mandates for others.