Last week, 64 Rajya Sabha members signed a notice of motion for the
removal of Chief Justice of India Dipak Misra. Rajya Sabha Chairman Venkaiah Naidu
refused to admit the impeachment motion on Monday. The question that is
now being debated is whether the Chairman enjoys discretion in
accepting or rejecting a notice signed by MPs.
The Constitution specifies the grounds and method for removal of a
judge of the High court or Supreme Court. According to it, a judge shall
be removed (a) only by an order of the President, (b) after the
presentation of an address by each house of Parliament, (c) supported by
a special majority, (d) in the same session and (e) on the grounds of
proved misbehaviour or incapacity. The Constitution also empowers
Parliament to make a law to regulate the procedure for the presentation
of the address to the President, and the investigation and proof of the
misbehaviour or incapacity of the judge.
Till 1968, Parliament did not enact such a law. During this time, the
procedure for removal of judges of the higher judiciary involved MPs
submitting the notice of motion for removal to the Speaker, who
discussed the matter with parliamentarians concerned, and examined
available material to ensure that there was a prima facie case. If there
was a case, the issue was brought to the notice of the chief justice of
the High Court concerned or the Supreme Court. The Speaker maintained
secrecy around the issue. Parliamentary records suggest that during this
time three such notices were brought before the Speaker. And in one of
these cases, the judge concerned voluntarily resigned.
In 1964, Parliament for the first time attempted to lay down the
procedural modalities for the removal of a judge. A bill empowering the
President to order an investigation into the allegations of misbehaviour
or incapacity of a judge was introduced in the Lok Sabha. A joint
committee of both houses was constituted to examine the proposed
legislation. The panel was of the opinion that to maintain the
independence of the judiciary, Parliament should be the forum where
proceedings against a judge should be initiated, and the executive
should be kept out of the investigation at all stages.
The committee proposed a four-step process. The first step was a
numerical safeguard — the notice of a motion for removal had to be
signed by at least 100 MPs of Lok Sabha, or 50 MPs of Rajya Sabha. In
the second step, the Lok Sabha Speaker or Rajya Sabha Chairperson was
granted discretionary power to admit or reject a notice after consulting
legal experts and studying the available material. In case the notice
was accepted, the third step would require the constitution of a
committee to investigate the grounds for the removal of a judge. And
finally, based on the report submitted by the committee, either
Parliament would consider the motion against the judge or dismiss it.
The 1964 Bill lapsed following the dissolution of the Third Lok Sabha
(1962-1967), and a version of the Bill similar to the committee’s
recommendation was passed by the Fourth Lok Sabha in 1968.
The 1968 Bill that was passed incorporated both the numerical
safeguard as well as the discretion of the presiding officer. Y B
Chavan, then Home Minister, who was piloting the bill, in his speech in
Rajya Sabha, referred to both the safeguards. He stated that the
presiding officers were given an “effective power” that would enable
them take note of notices which were adequately signed, and check and
satisfy themselves if there was a case before admitting a motion.
This aspect of the bill was not subscribed to by all MPs. L M
Singhvi, a member of the joint committee, submitted a dissent note in
which he expressed among other things, his concerns relating to this
point. He was of the opinion that the numerical safeguard was excessive.
According to Singhvi, the Speaker’s discretion to refuse or admit a
motion was an adequate safeguard and to “seek to fortify it any further
is like wearing (obsessively and pessimistically) a pair of suspenders
in addition to a belt around the waist.”
He quoted the testimony of parliamentary expert M N Kaul, who stated
that “…the most fundamental power of the Speaker is to admit a motion.
Nothing can come before Parliament unless the Speaker admits it. That
power is final and cannot be questioned. You can remove the Speaker but
you cannot question his decision whether a motion should be admitted or
not. Until a member gives notice, the Speaker has no powers, but the
moment a member gives notice, all the powers of the Speaker come into
play and then he has to exercise those powers with great skill and
caution and for the public good.”
Mr Singhvi was concerned that in light of the signatures of 100 Lok
Sabha MPs or 50 Rajya Sabha MPs, the discretion of the presiding officer
would become vulnerable as the “considerations of the intrinsic merit
of the motion and the materials on which it is based will tend to recede
into the background”. Kaul, who was nominated to Rajya Sabha in 1966,
while participating in the debate on the Bill echoed a similar
viewpoint. He said, “I can hardly conceive of a Speaker who will
disallow a motion when hundred members have sponsored it unless those
large number of members have not discharged their duty in a responsible
manner and have carelessly or thoughtlessly appended their signatures.
Then the Speaker can certainly test the position by interviewing the
Media reports suggest that the recent decision of the Rajya Sabha
Chairman may be challenged in the Supreme Court. If that happens, it
will be interesting to see whether the apex court rules that the
presiding officers of both houses are to act as a postbox and admit all
motions which are adequately signed, or they have discretionary power in
admitting notices regarding the removal of judges.