Joginder Singh Toor

THE recent recommendation by the Chief Justice of India, to the union government to initiate impeachment proceedings against Justice Soumitra Sen of the Calcutta High Court has set the government and the law makers in search of a substitute of the Judges Enquiry Act, 1968. This Act supplemented Article 124 and 217, 218 of the Constitution regarding the procedure for removal of a Judge for his misbehaviour or misconduct or incapacity. But sadly this attempt failed to fulfill the cherished goal, has not been able to remove a single judge during its 40 years operation, an act which in the opinion of governed and the governing ought to be changed or substituted.

“The members of the Constituent Assembly brought to the framing of the Constitution an idealism equaled only by that shown towards the Fundamental Rights,” observes Granville Austin. The judiciary was seen an extension of the rights, for it was the courts that give the rights a legal force. The judiciary was to be instrument of social justice by sustaining rights and values attached to them.
During British rule, although the Indians were present in the governmental and legal framework but the spirit of India was missing. The judicial system evolved by the British served to defend their interests by interpreting alien laws by the judiciary comprised of foreign incumbents at higher levels and it served foreign interests. It was the time the Indians, particularly India’s lawyers and jurists that abounded the Constituent Assembly to frame laws and build a judicial system, independent of the other two wings of the State; the executive and the legislature. Philosophy of checks and balances with separation of powers for each wing of the State, and each being independent of the other, although intrinsically linked was to be the guard and the counter guard.

The Constituent Assembly made eight committees for formulating different provisions of the Constitution to be given to the Drafting Committee headed by Dr.B.R.Ambedkar. The Committee of judiciary had the advantage of having prominent and experienced top lawyers and jurists of the time. The pertinent question before the Committee was to make the judiciary, a basin of rights and justice and independent of private interests. The avowed purpose was to render the fortress impregnable to sapping, not prone to be seen through, encroached upon or conquered and to keep the judiciary out of politics and politics out of the courts.

Besides salaries, allowances, tenure, age of retirement, and other routine matters, the mechanism for choice of Judges was the most boggling. The Sapru Committee made the recommendations:

“the justices of the Supreme Court and the High Courts should be appointed by the head of state in consultation with the Chief Justice of the Supreme Court and, in the case of High Court judges, in consultation additionally with the High Court Chief Justice and the head of the unit concerned. The justices of all courts could be removed on grounds of misbehaviour or infirmity of mind by the head of state, with the concurrence of the Supreme Court in the case of High Court justices, and with the concurrence of a special tribunal in the case of Supreme Court justices.”

The Sapru Committee also suggested that special provisions for the removal of judges be made because it was not satisfied with the mechanism in 1935 Act. Besides all this the Committee rejected the idea of taking the matter to the Parliament which was prevalent in England, because it did not think right that the judges’ conduct should be the subject of discussion in a heated atmosphere of a political assembly. The report was accepted. Provisions drafted but during the debate two main amendments were moved. One by A.K.Ayyar again introducing that judges be removed not on the recommendations of the government but only after the matter has been discussed in the Parliament and an address is presented to the President by the Parliament for removal of the judge.

M.A.Ayyangar brought the amendment that judges could be removed on the like grounds by a special tribunal of acting and former Supreme Court and High Court judges. Ayyar’s amendment was accepted and it was provided in Article 124(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 not less than two third of the members present and voting.”
Under Article 218 the same procedure applies to High Court judges.

The procedure for removal by impeachment provided in The Judges Enquiry Act is so cumbersome, that it is practically impossible to impeach a judge. Even on the recommendation of the Chief Justice of India for initiation of impeachment proceedings for proved misbehaviour the government is finding difficulty to have it initiated. It requires a petition to be signed by 100 M.Ps of the Lok Sabha or 50 members of the Rajya Sabha.

The Law Minister of India has expressed his concealed helplessness in initiating proceedings under the old Act. a bill presented in 2006 is still under consideration. The debate centers on whether there should be a Judicial Commission or a Judicial Council, with components from the judiciary alone or from the government, the opposition, legal fraternity and legal experts. Whether or not there should be an address by the Parliament. A debate as magnificent as in the Constituent Assembly but the effort is as little as for an ordinary routine bill. The questions involved are of public importance and involvement of the public is almost nil. The provision if made without public debate or likely to again create a mess more confounded than created by Judges Enquiry Act,1968 40 years ago.

[Joginder Singh Toor is senior advocate and public affairs commentator jogindersingh_toor@yahoo.com]

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