Farce of impeachment

The institution of impeachment of judges is obsolete. The time has come for a non-partisan attempt at reform. The proposed law should provide for both punishment by removal and censure for lesser lapses.

Published : May 23, 2018 12:30 IST

February 1948: Some members of the Drafting Committee of the Constituent Assembly of India: (seated from left) N. Madhava Rao, Saiyid Muhammad Saadulla, Dr B.R. Ambedkar, Sir Alladi Krishnaswamy Ayyar and Sir B.N. Rao. Also in the picture are (standing from left) S.N. Mukherjee, Jugal Kishore Khanna and Kewal Krishan.

February 1948: Some members of the Drafting Committee of the Constituent Assembly of India: (seated from left) N. Madhava Rao, Saiyid Muhammad Saadulla, Dr B.R. Ambedkar, Sir Alladi Krishnaswamy Ayyar and Sir B.N. Rao. Also in the picture are (standing from left) S.N. Mukherjee, Jugal Kishore Khanna and Kewal Krishan.

ON July 29, 1947, the framers of the Constitution, led by Sir Alladi Krishnaswamy Ayyar, consciously adopted the institution of impeachment of judges, which had already become utterly obsolete even in the country of its origin. In Britain, the High Court of Parliament had long ceased to exercise its judicial authority through an inherently political procedure.

The Government of India Act, 1935, provided in Section 220(2)(B) that a High Court judge may be removed from his office on the ground of misbehaviour or of infirmity of mind or body if the Privy Council, on reference being made to it by the Governor General, reported that he ought to be removed.

After Independence, the Federal Court exercised the jurisdiction that was vested in the Privy Council. It proved effective. In 1949, Justice S.N. Sinha of the Allahabad High Court was speedily removed from his office as judge by the Federal Court on a reference to it by Governor General C. Rajagopalachari; M.C. Setalvad appeared for him ( My Life , pages 134-135).

The last two cases of impeachment were of Warren Hastings (1787), the first Governor General of India, and of Lord Melville (1805), Treasurer of the Admiralty; not to overlook the impeachment of Sir Elijah Impey, the first Chief Justice of the Supreme Court in Calcutta. Three committees of the House of Commons, the last in 1999, pronounced impeachment to be “obsolete”. It was wiped out.

The debates in the Constituent Assembly on July 29 and 30, 1947, show how Alladi Krishnaswamy Ayyar, a member of the Drafting Committee and one of the most conservative lawyers of the old school, swayed the Assembly by painting a lurid picture of judges being reduced to the level of civil servants ( Constituent Assembly Debates , Vol. IV, pages 891-904). They are most instructive and bear quotation in extenso :

Constituent Assembly debates

He said: “Then with regard to the removal of judges under the Constitution of 1935, the power was vested in His Majesty in Council and His Majesty would have the advantage of a judicial body. Therefore, that was the basis of the Act of 1935. In cases of misconduct or misbehaviour, His Majesty in Council was clothed with the jurisdiction to initiate any proceedings against a judge of the Federal Court or against a judge of the High Courts in India. Under the present Constitution the suggestion that is made in certain quarters, that the President of the Union with the advice of some council or some panel of judges should have the power of removal, is not, I venture to submit, a proposition which will meet with the acceptance of the House. That will bring the highest judicial dignitary in the land, the Chief Justice or the Chief Justices of the High Courts, into the position of a member of the Indian Civil Service.

“Imagine the President appointing a special commission of a few judges to inquire into the conduct of the Chief Justice of India or the Chief Justice of the Provincial High Court. I should think that is not a position which will commend itself to the House. This particular provision which I have put in, namely, that ‘he shall not be removed from his office except by the President on an address from both the Houses of Parliament of the Union in the same session for such removal on the ground of proved misbehaviour or incapacity’, is in line with the provision in the various Acts of the British Commonwealth. In Australia, in Canada, in South Africa, there is a similar provision and similarly from the date of the Act of Settlement in England it is only by resolution of both the Houses that a judge could be removed from his office. It does not mean that power will normally be invoked. The best testimony to such power is that it has never been exercised. It is a wholesome provision intended to be a salutary check on misbehaviour, not intended to be used frequently, and I have no doubt that the future legislatures of India which are invested with this power will act with that wisdom and that sobriety which have characterised the great Houses of Parliament in other jurisdiction.”

This was preposterous. Democratic constitutions are framed because their authors deservedly distrust the majority of the day. He did not mention that by 1947 impeachment had become obsolete.

M. Ananthasayanam Ayyangar disagreed: “Sir Alladi thinks that this power ought not to be vested in the President at all, because it will make the Supreme Court judge subordinate to the President. Therefore he has suggested a remedy, that only when the legislature moves the President in this matter by a unanimous resolution, the judge ought to be removed. I have suggested a middle course and have tabled an amendment that any judge of the Supreme Court may be removed from office on an address presented to the President by both Houses of the Legislature but before the address is presented the President must have appointed a committee of seven judges of High Courts to investigate into this matter. If they report that the judge in question has committed any breaches for which he is liable to be removed, on that report both the Houses of legislature may present an address to the President or withhold it. Therefore, this is a combination of both remedies. The legislature will have control over the removal of a judge and the power will not be exclusively given to a President or a panel of judges. As both Houses of the legislature are constituted their number is nearly 600.

“You will remember that with respect to the removal of the President an amendment was tabled and accepted that when the lower chamber or either of the chambers initiates a resolution for the removal of the President by way of impeachment, a committee has to be appointed by the other House and on the committee’s report a resolution must be framed. It is in the fitness of things that a small body should go into the matter of the misbehaviour of a federal judge and recommend that he be removed. The entire body of the legislature consisting of 600 and odd members may find it difficult to investigate into the matter themselves. Therefore it is reasonable to suggest that both the Houses must be moved in the matter after a committee of judges has reported that it is a fit case for interference. I am not alone in making this suggestion.

“The Sapru Committee Report—Sir N. Gopalaswami Ayyangar was a member of the committee—has suggested that the President, in accordance with the report of the tribunal to be appointed for this purpose, may be empowered to remove any judge of the Supreme Court. If Sir Alladi Krishnaswami Ayyar takes objection to this item in the Sapru Committee Report on the ground that it becomes an absolute power in the hands of the President to accept or reject, I could see no objection to his accepting my amendment in this respect which is a combination of both the judicial and executive authority.”

The Alladi formula

The Alladi formula, which was adopted, aborts the process at its very origin—by politicians, the MPs. Replying, Sir Alladi said: “Here I would ask you, Sir, to follow the practice in all the Dominion Constitutions. Whereas on the one hand there is an anxiety to increase the importance of the judiciary, I cannot understand the judiciary also being treated on a level with government servants or by a kind of special tribunal being invested with the power of removal.” The initiation was slavish. However, both brought in the politics through legislature.

True to form, Sir N. Gopalaswami Ayyangar was evasive. He said: “Between the two amendments, there are certain considerations which we should take into account before we decide which of them we will favour. Among these considerations is the one, that it seems odd that, for the purpose of deciding the question as to whether a judge should be removed from his office, we should invite the two Houses of the Legislature, one of them containing something like 500 or 600 members and the other perhaps consisting of about half that number, to pass an address, that is to say, a resolution giving their verdict as to whether a judge has misbehaved and, if so, whether he should be removed from his office.

“It does seem to me, Sir, that that is a procedure before accepting which we shall have to think furiously. I say so for this reason that we have even in the case of ordinary public servants travelled far away from the principle of either getting them appointed by popular vote or of getting them removed by popular vote. If you are going to introduce in the case of judges of the highest court in the land the principle which you are not prepared to accept even in the case of ordinary public servants, that procedure, Sir, seems to me to stand in need of very heavy justification, if I may put it in those words. The other procedure that has been suggested is that the question of whether a judge has misbehaved and therefore whether he should be removed should be decided or adjudicated upon by the President on the report of a tribunal which he will specially appoint for the purpose from amongst the judges, and ex-judges of either the Supreme Court or the High Courts. That again, Sir, is placing a judge who is accused of misbehaviour in the dock before a tribunal some of the members of which might have held positions subordinate to him in the judicial hierarchy of the country. So there is that to be said against the procedure also. But personally I am not prepared to say that either the one or the other is necessarily to be preferred because, whether you adopt the one or the other, it is my expectation that we shall probably never have an occasion for using this procedure for dealing with any individual judge of the Supreme Court. I should leave it to the House to decide between these two alternatives, and whatever alternative it chooses will be put into the text of the Draft Constitution.” On July 29, 1947, Sir Alladi’s amendment was adopted.

Justice V. Ramaswamy’s case

On May 11, 1993, the Lok Sabha rejected the motion for the impeachment of Justice V. Ramaswamy of the Supreme Court by 196 votes for, none against and 205 abstentions; 273 votes were needed to secure the passage of the motion. Prime Minister P.V. Narasimha Rao had sent across a verbal whip for abstentions. Three days later, the judge resigned, ending a shameful episode. On June 23, 1701, the House of Lords resolved that “the Lords who absented themselves from the trial of Lord Oxford [impeached for high crimes and misdemeanours] and shall not make a just excuse for the same, are guilty of a great and wilful neglect of their duty”—a singularly apt characterisation of the conduct of the Congress’ abstainers on May 11, 1993. The whip issued to them, though oral, is provable. It renders the vote of the Lok Sabha unconstitutional.

Way back in 1936, after participating in the trial of Judge Halstead Ritter in the United States, a Senator described the impeachment procedure as “a standing invitation for judges to abuse their authority with impunity”. In his definitive work, Impeachment: The Constitutional Problems , Professor Raoul Berger contrasts “the constant attendance of judges schooled to listen to evidence and to grasp complex issues” with the Senators who “simply cannot find time to study and digest the bulky record”. When, in 1990, there was a rash of cases of judicial corruption, the then Chief Justice of India, Justice Sabyasachi Mukharji, characterised impeachment as being “practically impossible. The process is just too cumbersome.” Why is parliamentary approval by politicians needed for the findings of three judges?

Canadian Judicial Council

What of a judge’s lapses that do not warrant removal? In 1983, Justice Thomas Berger resigned from the Supreme Court of British Columbia because the Canadian Judicial Council, consisting of the country’s 27 senior judges, ruled that “it was an indiscretion on the part of Mr Justice Berger to express his views as to matters of a political nature, when such matters were in controversy”.

The council stopped at a reprimand for it felt that the indiscretion provided “no basis for a recommendation that he be removed from office”. A complaint against Justice Berger was made by Justice George Addy of the Federal Court of Canada. On November 18, 1981, he wrote to the then Chief Justice of Canada, Justice Bora Laskin, Chairman of the Canadian Judicial Council, enclosing a clipping from the Ottawa Citizen of November 10 reporting a speech by Justice Berger. Justice Berger had characterised as “mean-spirited and unbelievable” the compromise arrived at by the provincial premiers on the Charter of Rights because, in his view, it did not protect minority rights, especially those of the natives, the “poor and powerless”. He was touring to promote the sale of his book Fragile Freedoms, Human Rights and Dissent in Canada , a severely critical survey of “the actions that governments at all levels have taken against minorities”. The speech, Justice Addy complained, violated “the bounds of propriety”.

In a TV interview on November 24, the then Canadian Prime Minister, Pierre Trudeau, criticised Justice Berger: “I just regard this as the judiciary getting mixed into politics and I hope the judges will do something about it.” Justice Berger wrote to Chief Justice Laskin on March 2, 1982, in his defence. “I do not dispute that, in a given case, a judge’s public statements may constitute grounds for his removal from office.” If the Canadian Judicial Council considered that the appropriate course, it could say so. The council resolved, on March 8, to set up a committee of investigation consisting of three justices. It received a most erudite memorandum from Chief Justice McEachern of British Columbia in defence of his colleague. The report refutes these facile and facetious pleas so completely that it bears quotation in extenso :

“[A] judge’s conscience is not an acceptable excuse for contravening a fundamental rule so important to the existence of a parliamentary democracy and judicial independence. To say that not all judges are cast in the same mould, as does Justice Berger, is only to state the obvious. On every great matter of political concern it would be probable that judges would hold opposing views privately and, if Justice Berger’s view is acceptable, it would be possible to have judges speaking out in conflict, one with the other, because they hold those opposing views from a sense of deep conviction.

“We say again if a judge becomes so moved by conscience to speak out, on a matter of great importance on which there are opposing and conflicting political views, then he should not speak with the trappings and from the platform of a judge but rather resign and enter the arena….”

The Canadian Judicial Council was set up under the Judges Act. The time has come for a non-partisan attempt at reform. The proposed law should provide for both punishment by removal and censure for lesser lapses. Impeachment simply serves as a shield to protect judges who are corrupt or have sold their souls to the Government of India, which commands a legislative majority to avert impeachment.

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