Reason for discomfort
Two instances that immediately preceded the present one only reinforce the concerns: one concerning a judge from Gujarat for his observations in a judgment and the other from Andhra/Telangana where a communal twist was given to the case.
The question then is, should there be some safeguards before the motion, tabled by the requisite number of Members of Parliament, is admitted?
A fearless judge is the bedrock of an independent judiciary, as much as an independent judiciary itself is the foundation on which the rule of law rests.
In the discharge of his official duty, a judge is obliged to decide on a variety of matters concerning the government and the political class. To name a few: public interest litigations involving disclosure norms for contesting candidates; the right of a chargesheeted person to contest elections; election petitions; electoral disqualifications, validity of government policies, criminal prosecutions of political leaders, including for owning assets disproportionate to their known sources of income; challenges to anti-defection law disqualifications; challenges to action for alleged breach of privilege motions.
Fixity of tenure and removal only by impeachment, no doubt, are guarantees for independence. But in a perception-driven world, the incalculable damage that even a mere admission of an impeachment motion can cause, and the consequential loss of reputation, that can never be redeemed, need to be primarily addressed.
Moreover , till the proceedings conclude, the functioning of the judge concerned comes under a cloud and even an ultimate exoneration cannot give him or her back the enormous loss of honour. This is quite apart from the incalculable damage the process itself causes to the institution of the judiciary.
While a corrupt judge should be impeached without doubt, it must be ensured that the large body of independent judges is protected and they are not inhibited and shackled while going about their work with any possible threat of an impeachment looming large. Judges should be free of chilling effects.
Question of procedure
Article 124(4) of the Constitution and the provisions of the Judges (Inquiry) Act, should be so interpreted that before admitting a motion of impeachment against a judge of a high court or the Supreme Court, the presiding officers in Parliament should be obliged to obtain the concurrence of the full court of the Supreme Court. This would be on the administrative side and if it involves a judge of the apex court, that judge would not participate in the sitting. To obviate any possibility of delay or the non-convening of full court meetings, it could be provided that in the absence of there being any response from the Supreme Court in four weeks’ time, it would be a deemed concurrence. Any admission of the motion without the concurrence would render the motion illegal and ab initio void.
There are several reasons why this interpretation would comport with our constitutional scheme. First, after the Second Judges case, today the power to appoint judges of the higher judiciary vests in the apex court. Removal being directly connected to appointment, it is only logical that the first filter in the process vest with the judiciary.
Second, the principle of independence of the judiciary on which the Second Judges Case was founded for the aspect of appointment should apply with full vigour to the initiation of the removal process. In a matter like this, which is so integral to the judiciary and to its independence, such a safeguard ought not to be seen as diluting the powers of the presiding officers of Parliament.
Third, on matters of criminal prosecution of a sitting judge, the Veeraswami case has already recognised a similar methodology of screening. Impeachment and prosecution are from the perspective of the institution on the same pedestal.
Fourth, the Judges (Inquiry) Act expressly provides that the presiding officers, before admitting a motion for impeachment, will consult such persons as they deem fit. It can be safely presumed that while the peer group will immediately concur to get rid of the black sheep from their midst, they will zealously safeguard a judge who is unfairly targeted.
In the judiciary’s court
There is a perception in the community that attempts are being made to considerably weaken the judiciary. There is also a feeling, that enough is not being done by the judiciary to check that attempt. It is time for the judiciary to assert itself. The absolute disregard shown to collegium recommendations by the executive, notwithstanding the categoric pronouncement in the National Judicial Appointments Commission (NJAC) case, is shocking. But what is bewildering is the total inaction from the judicial side. Vacancies are mounting and pendency of cases is reaching alarming proportions. The faith of the people in the judiciary should not be lost. It is time that by a judicial order the Memorandum of Procedure (MOP) is set out and a mandamus issued to government to follow the same and clear pending appointments in a time-bound manner. If the judiciary is perceived as weak, more and more impeachment proposals would do the rounds. The message should go from the top. That will also rejuvenate the high courts and give the judges their much-needed confidence.
In the eyes of the international community, the executive government also will be shown in a bad light if the judiciary in the country is not independent and strong. Business will not be forthcoming. Tourism will suffer. There will be fear and insecurity. The rule of law will be a far cry. All this will deliver a serious blow to the economy.
After all, there is no reason for any clean government to fear a judiciary that is strong, fearless and independent.
K.V. Viswanathan is a Senior Advocate and a former Additional Solicitor General