How the current impeachment law for removal of judges was shaped

  • 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.

1968 Bill:

  • 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 members.”
  • 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.


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