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LUCID MAINS CURRENT AFFAIRS 2018

  1. REMOVAL OF CHIEF JUSTICE OF INDIA AND RELATED ISSUES

WHY TO FOCUS?

  • Recently, there has been a move to remove Chief Justice of India from his office
  • First time against Chief Justice of India.
  • Accusation against him is about “abuse of authority arbitrarily to assign individual cases to select judges”.
  • There is four more charges against him but all those are not important for us.

HISTORY

  • 7th Indian judge to face a motion for removal but none has so far been removed through this procedure.
  • Previous Judges who faced motion for removal either resigned before the process was completed or their removal failed to receive Parliament sanction.

GROUNDS OF REMOVAL

  • Proved misbehavior and Incapacity

WHAT CONSTITUTION SAYS?

  • A Judge of Supreme Court / High Court can be removed by an order of the President.
  • Only after an address by Parliament has been presented to him for the removal.
  • This address must be supported by a special majority of each Houses of Parliament
  • Special majority – majority of the total membership of the House and a majority of not less than two third of the members of that House present and voting.

PROCEDURE FOR REMOVAL

The Judges Enquiry Act 1968 outlines the procedure for removal of the Judge.

  • A removal motion signed by 100 members (Lok Sabha) or 50 members (Rajya Sabha) is to be given to the Speaker/ Chairman.
  • The Speaker or Chairman may admit the motion or refuse to admit it.
  • If it is admitted, then the Speaker or Chairman will constitute a three member committee to investigate into the charges.
  • The committee should consist
  1. The Chief Justice or a Judge of the Supreme Court.
  2. A Chief Justice of a High Court.
  3. A distinguished jurist.
  • If the committee finds the Judge to be guilty, the House can take up the consideration of Motion.
  • This motion must be passed by special majority in both Houses of Parliament.
  • If it is passed, the address will be presented before the President for removal of the Judge.
  • Finally, the President passes an order for the removal of judge.

ISSUES INVOLVED

  • Chairman’s power on rejecting the motion given by the member.
  • The debate is about the decision of Chairman to refuse to admit the motion for removal of judge.
  • The Supreme Court has already ruled that, the Chairman is not bound to admit the motion moved in the House.
  • Possibility of judicial review on Chairman’s decision.
  • In “Sub Committee of Judicial Accountability (SCJA) Case, it is noted that, the entire process from the admission of a motion until the conclusion of the enquiry by the committee is governed by the Act.
  • Hence subject to judicial review. Only after committee makes a finding, the parliamentary process starts and which will be excluded from judicial review.
  • PUNISHMENT FOR JUDGES IN CASE OF LESSER OFFENCE
  • Severity of wrong doing varies.
  • Removal of judge is appropriate only for grave wrongs.
  • Constitution offers no guidelines for the lesser wrongs.
  • PROCESS OF REMOVAL OF JUDGES NEED TO BE REVISED OR NOT?
  • There has been many cases of judicial impropriety, but no one has been removed so far.
  • The process of removal is too elaborate and time consuming.
  • It says that, the process goes against natural justice as the chance of a guilty judge escaping removal depends on political process like voting.
  • On the other hand, revising process of removal may sometime affect independence of judiciary.
  • CJI'S POWER ON ALLOCATING CASES
  • This is significant as there has been an unprecedented press conference of senior most Judges raising the issue of improper allocation of cases.
  • There has been a PIL filed in SC seeking a mechanism to allocate cases by Supreme Court.
  • Ruling of SC, CJI has been entrusted with the power to constitute benches and allocate them work, by virtue of being at the helm of affairs of SC, as determined by Constitution.
  • In short, it says that, this authority of CJI to allocate case comes from the Constitution.

POINTS IN FAVOR OF ALLOCATING CASES BY CJI

  • CJI is the first among equals and has authority to decide allocation of cases and setting up of benches.
  • Since CJI is a high constitutional functionary, there cannot be any distrust about the responsibilities he discharges.
  • The number of cases filed in SC on daily basis is high, so will not be feasible to have the collegium sit twice or thrice in a week.
  • Already SC have high backlog of cases.

POINTS AGAINST ALLOCATING CASES BY CJI

  • It says that, the convention of recognizing CJI as the master of roster and assigning cases to different bench is for disciplined and efficient transaction and not a recognition of superior authority.
  • As there is no procedure for the allocation of cases, there is a chance of exercising power arbitrarily, which will go against Right to Equality.
  • It says that, there were instances, where sensitive cases were allocated to particular bench in contravention to the rules.

WAY FORWARD

  • 195th Report of Law Commission in the context of The Judges Enquiry Bill 2006 suggested “minor measures to discipline lesser violation:-
  1. Issue advisories
  2. Temporary withdrawal from judicial work
  3. Requesting retirement etc.
  • Can operationalize these proposals till a new law comes in.
  • Over bench fixing problem, since mid-1990s, a software has helped to pair the cases with regular bench (2 Judge). Similar methods can be used to summon special bench also.
  • Can think about collegium allocating cases which are sensitive in nature.
  • In Prem Chand Garg case, SC held that, rules by the court violative of fundamental right can be struck down as ultra vires of Constitution.
  • If the rule of CJI being master of roster is used in an arbitrary manner violating right to equality, it can be struck down.
  • Courts must be transparent enough to keep the trust of public in the judiciary.
  • As per The Judges Enquiry Bill 2006, create a mechanism for any person to complain about misbehavior of High Court or Supreme Court judges.
  • Establish a permanent body like National Judicial Commission to enquire into such allegations.
  • Judges going against judges cannot be considered as good precedence, so this leadership crisis must be resolved within the system by giving ample space to fellow judges and listening to their problems.