Quashing of the Congress “Impeachment” may not be the end of the story

The Congress, its current President and some others like Sibal, are capable of doing anything in their craving for power once again.

Despite the opinions of Legal Eagles like Fali Nariman, Soli Sorabjee and Upendra Baxi (a 79-year-old Professor and Doctorate in Law since 1973 from the University of California at Berkeley), its end may well be a tragic twist. It may just may, lead to the removal of our country’s current Vice President!!

Yes, that may well happen in the Supreme Court if the threatened Congress petition against the quashing gets a favorable verdict there on the Congress charge that the quashing was “illegal”, “unconstitutional” and “hasty”. It all depends on the relevant text and Rules (if any) of our Constitution as well as their interpretation over the period since that sacrosanct document came into existence in January 1950.

Parliament may by law regulate the procedure for the presentation of an address and for the investigation and proof of the misbehavior or incapacity of a Judge.

The problem really starts from starts from basic, original petition against the Chief Justice of India petition being titled as “impeachment” motion.

That word, “impeachment” is a strong, one, very strong. In Britain, it is construed as “treason”. Even in the USA, the word is used to condemn and defame its President — forever. Remember Richard Nixon and Bill Clinton? In our Constitution too, there is a separate Constitutional Article (number 61) titled as “Procedure for impeachment of the President”.

In our Constitution, that is not the word used in the context of removing a Supreme Court Judge from his or her position. In fact, the removal of a Supreme Court judge comes under a broad Article, numbered 124 titled as “Establishment and Constitution Supreme Court” It is sub-sections (4) and (5) of that Article 124, in which

The removal of a High Court judge is covered by 217 (1) (b) and 218 of the Constitution. The grounds for removal in both these judges is “Misbehaviour” or “Incapacity”. In respect of a Supreme Court judge, the relevant sub-sections of Article 124 are as follows:

. “(4) 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 proven misbehaviour or incapacity.

(5) Parliament may by law regulate the procedure for the presentation of an address and for the investigation and proof of the misbehavior or incapacity of a Judge under clause (4).”

The Central Government may, if required by the Speaker or the Chairman, or both, as the case may be, appoint an advocate to conduct the case against the Judge.

The Parliamentary law under Article 124 (5) is contained in Section 3 of “Judges (Inquiry) Act, 1968.” It states as follows:

 Quote

“Investigation into misbehavior or incapacity of Judge by Committee.

(1) If notice is given of a motion for presenting an address to the President praying for the removal of a Judge signed,—

(a) in the case of a notice given in the House of the People, by not less than one hundred members of that House;

(b) in the case of a notice given in the Council of States, by not less, than fifty members of that Council, then, the Speaker or, as the case may be, the Chairman 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.

(2) If the motion referred to in sub-section (1) is admitted, the Speaker or, as the case may be, the Chairman shall keep the motion pending and constitute as soon as may be for the purpose of making an investigation into the grounds on which the removal of a Judge is prayed for, a Committee consisting of three members of whom—

(a) one shall be chosen from among the Chief Justice and other Judges of the Supreme Court;

(b) one shall be chosen from among the Chief Justices of the High Courts; and

(c) one shall be a person who is in the opinion of the Speaker or, as the case may be, the Chairman, a distinguished jurist: Provided that where notices of a motion referred to in sub-section (1) are given on the same day in both Houses of Parliament, no Committee shall be constituted unless the motion has been admitted in both Houses and where such motion has been admitted in both Houses, the Committee shall be constituted jointly by the Speaker and the Chairman: Provided further that where notices of a motion as aforesaid are given in the Houses of Parliament on different dates, the notice which is given later shall stand rejected.

(3) The Committee shall frame definite charges against the Judge on the basis of which the investigation is proposed to be held.

(4) Such charges together with a Statement of the grounds on which each such Charge is based shall be communicated to the Judge and he shall be given a reasonable opportunity of presenting a written Statement of defense within such time as may be specified in this behalf by the Committee.

(5) Where it is alleged that the Judge is unable to discharge the duties of his office efficiently due to any physical or mental incapacity and the allegation is denied, the Committee may arrange for the medical examination of the Judge by such Medical Board as may be appointed for the purpose by the Speaker or, as the case may be, the Chairman or, where the Committee is constituted jointly by the Speaker and the Chairman, by both of them, for the purpose and the Judge shall submit himself to such medical examination within the time specified in this behalf by the Committee.

(6) The Medical Board shall undertake such medical examination of the Judge as may be considered necessary and submit a report to the Committee stating therein whether the incapacity is such as to render the Judge unfit to continue in office.

(7) If the Judge refuses to undergo medical examination considered necessary by the Medical Board, the Board shall submit a report to the Committee stating therein the examination which the Judge has refused to undergo, and the Committee may, on receipt of such report, presume that the Judge suffers from such physical or mental incapacity as is alleged in the motion referred to in sub-section (1).

(8) The Committee may, after considering the written Statement of the Judge and the medical report, if any, amend the charges framed under sub-section (3) and in such a case, the Judge shall be given a reasonable opportunity of presenting a fresh written Statement of defense.

(9) The Central Government may, if required by the Speaker or the Chairman, or both, as the case may be, appoint an advocate to conduct the case against the Judge.” Unquote

The procedure on the removal of a Supreme Court judge from office should be made crystal clear.

The problem in the present case is that the  Congress lawyer, Kapil Sibal, has found fault with our country’s current Vice President for not straight away constituting an Inquiry Committee; instead of simply verifying whether the number of signatories to the Congress-led “Impeachment” motion. Our Vice President, he said, was himself trying to prove the “misbehaviour” of the Chief Justice of India, instead of leaving that job to the Inquiry Committee. In short, he did not believe that he should have indulged in consulting certain persons as permitted by (1)(b) above (highlighted in bold) before rejecting the Congress “impeachment” motion.

The Congress petition would therefore one surmises, go on to accuse our current Vice President of “misbehaving” and “dereliction of duty”. AND, therefore, go on to seek his removal from office under Article 67(b) of our Constitution. Interestingly, that Article does not specify the grounds on which the Vice President can be removed from his office. But, trust Sibal, the ‘zero loss” man of the 2G scam to say anything, even in a court of law. Remember, he even recently threatened the Supreme Court of walking out of the court if his plea of some sort was not accepted.

And, if the Supreme Court sides with Sibal as it did in its verdict of letting off the accused in the 2G scam, the story so far might also end in a tragedy for our country.

One thing is clear. The procedure on the removal of a Supreme Court judge from office should be made crystal clear, To this day, for instance, the words “misbehaviour” and “incapacity” have neither been defined nor clarified in the Constitution.

You, dear readers, have been warned. The Congress, its current President and some others like Sibal, are capable of doing anything in their craving for power once again.

Note:
1. Text in Blue points to additional data on the topic.
2. The views expressed here are those of the author and do not necessarily represent or reflect the views of PGurus.

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Arvind Lavakare

Arvind Lavakare has been a freelance writer since 1957. He has written and spoken on sports on radio and TV. He currently writes on political issues regularly. His writings include a book on Article 370 of the Indian Constitution.

His freelancing career began in "The Times of India" with a sports article published when he was a month shy of 20 years of age. He was also a regular political affairs columnist first for rediff.com for five years or so and then shifted to sify.com. He also wrote extensively for niticentral.com "till it stopped publication."

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