Master of the next steps 

Master of the next steps

Context

Impeachment motion against CJI

What has happened?

The impeachment motion initiated against CJI has been rejected by chairman of the Upper House

Removal of judge of SC

A judge of the Supreme Court can be removed from his office by an order of the President. But the President can issue the removal order only after an address by Parliament supported by a special majority of each House of Parliament

• The special majority is a majority of the total membership of that House and a majority of not less than two-thirds of the members of that House present and voting

Grounds of removal

The grounds for impeachment are:

• proved misbehaviour
• incapacity

The process of removal:

1. A removal motion signed by 100 members (in the case of Lok Sabha) or 50 members (in the case of Rajya Sabha) is to be given to the Speaker/Chairman.
2. The Speaker/Chairman may admit the motion or refuse to admit it.
3. If it is admitted, then the Speaker/Chairman is to constitute a three-member committee to investigate into the charges.
4. The committee should consist of (a) the chief justice or a judge of the Supreme Court, (b) a chief justice of a high court, and (c) a distinguished jurist.
5. If the committee finds the judge to be guilty of misbehaviour or suffering from an incapacity, the House can take up the consideration of the motion.
6. After the motion is passed by each House of Parliament by special majority, an address is presented to the president for removal of the judge.
7. Finally, the president passes an order removing the judge.

Master of the roster: Arbitrary use of power

• Arbitrary use of power:  On April 11, a three-judge Bench headed by the CJI had given a judgment upholding absolute power of CJI in the constitution of benches. A similar order was passed by a five-judge Bench again headed by the CJI in November 2017, when for the first time in the Supreme Court’s history, administrative powers were used within 24 hours to overrule a judicial order of a Bench, in this case headed by Justice J. Chelameswar. Another two-judge Bench of Justices A.K. Sikri and Ashok Bhushan is scheduled to hear Shanti Bhushan’s petition later this week. Arbitrary use of administrative power by CJI is certainly subject to fundamental rights, including the right to equality
• The Supreme Court Rules, 2013, framed under Article 145 of the Constitution, do state that CJI is master of rolls. But since constitution of Benches is an ‘administrative’ function, this function cannot be exercised at the CJI’s whims and wishes. Thus the cherry-picking in Bench constitution may not be violative of ‘the rule by law’ but is definitely contrary to the ideals of ‘the rule of law’.

Way forward

In the wake of the current crises, some mechanism can be evolved to ensure that one individual does not have absolute power to make or unmake Benches

Conclusion

We may disagree with a number of judicial and administrative decisions of the CJI. But none of his actions can really amount to ‘incapacity or proved misbehaviour’, i.e. grounds of impeachment, and thus the rejection of the notice by the Vice-President.