Safeguards before impeaching a Judge

Mr K. V. Viswanathan, Senior Advocate and former Additional Solicitor General, writes in support of safeguards before a motion to impeach a judge is admitted in the Parliament. He is wary of the euphoria over the proposed impeachment of Chief Justice Dipak Misra, as it impinges the independence of the Judiciary. He emphasises that a fearless judge is a bedrock of an independent judiciary.

He writes that a corrupt judge should be impeached, but it must be ensured that the large body of independent judges is protected. Judges should be free of chilling effects.

Mr Viswanathan writes that Article 124(4) of the Constitution and provisions of the Judges (Inquiry) Act, should be so interpreted to oblige the presiding officers in Parliament to obtain the concurrence of the full court of the Supreme Court before admitting a motion of impeachment against High Court or Supreme Court judge. He supports this interpretation with 4 arguments. One, the first filter in the process should vest with the judiciary, since removal is directly connected to appointments, and the power to appoint judges of the higher judiciary vests in the apex court. Two, the principle of independence of the judiciary should apply to the removal of judges. Three, impeachment and prosecution are on the same pedestal from the perspective of the judiciary. Four, the Judges (Inquiry) Act expressly provides that the presiding officers must consult ‘such persons as they deem fit’ before admitting a motion for impeachment. Here, Mr Visawanathan assumes that the peer group of judges will immediately concur to get rid of the black sheep from their midst, but also zealously safeguard a judge who is unfairly targeted.

Mr Viswanathan admits that although the disregard for collegium recommendations by the executive is shocking, it is also time for the judiciary to assert itself. HE suggests that the judiciary could this by issuing a mandamus to the government to follow the Memorandum of Procedure (MOP) and clear pending appointments. He ends his piece with a caveat that the absence of a strong and independent judiciary would not reflect well in the eyes of the international community.