Recently, an attempt of seven opposition parties to dismiss the Chief Justice of India miserably ended in a fiasco. According to the existing system, a motion for such removal can be raised in either House of Parliament. In the Rajya Sabha, it has to be supported by at least 50 members of the House, while, in the Lok Sabha, the number of such members must be at least 100.

The aforesaid motion was presented before the Rajya Sabha by 71 members – but, as the term of seven of them had already expired, it should be regarded that the number of such signatories was in reality 64. In this sense, there was no problem of numbers.

Article 124 (4) of our Constitution has mentioned both the reason and procedure of such dismissal. And Art. 217 (1) (b) has stated that a Judge of the High Court can be dismissed on the same ground and by following the similar method. Thus, the Judges of the superior courts cannot be thrown out by the changing whims of political leaders.

Before entering into the pros and cons of the issue, it needs to be remembered that through some newspapers have used here the word ‘impeachment’, it cannot, in reality, be fitted to the present issue. Art. II, Sec. 4 of the American Constitution has, however, stated that the President, Vice-President and all Civil Officers can be removed by ‘impeachment.’

But, our Constitution has used the term in connection with the dismissal of the President alone. As Dr SC Kashyap has put it, ‘contrary to the common belief, there is no provision in our Constitution for the impeachment of a Judge. The impeachment is provided for the President and none else’.

But there are other problems in this affair. The signatories had provided five allegations – 1) bribery in the Prasad Education Trust case; 2) alleged bid of the CJ to deal with a case in a dubious manner; 3) preventing a Judge from dealing with a case; 4) acquiring a piece of land through a false affidavit when he was an Advocate and 5) abuse of power by sending sensitive cases to a chosen bench.

Some of these charges were based upon the prior statement of four learned Judges of the same court. But, significantly, though there are 23 Judges on the Bench excluding the CJ, others are as yet silent on these issues.

So, the chargesheet against the CJ cannot be regarded as a unanimous move or collective venture of the existing Judges. Thus, neither the Judges nor the political parties have come up with one accord. It may mean that the conduct of the CJ is above board.

Moreover, Art. 124 (4) has mentioned only two grounds on which such a motion can be raised. They must be either ‘misbehaviour’ or ‘incapacity.’ Misbehaviour may mean corruption or misconduct. And incapacity implies either a mental or physical ailment which causes inability to perform one’s duty. But, in both of these cases, the charge must, under Art. 124 (4), be ‘proved.’ It means that the charge must be justified by documentary evidence and factual proof.

It is highly doubtful whether the aforesaid allegations against the CJ can be regarded as either misbehavior or incapacity as enshrined in Art. 124 (4), because, the terms have not, by any means, been defined by the Constitution.

This is why the Vice-President, as the ex-officio Chairman of the Rajya Sabha, found a reason to reject the removal-notice given by the Congress-led opposition parties.

According to him, the allegations “have a serious tendency of undermining the independence and status of the judiciary.” He also observed that he had seriously considered the materials contained in the notice, but “they do not deserve to be admitted”. He has further opined that some of the allegations were based upon mere “suspicion, conjecture and assumptions”.

Significantly, the Vice-President consulted some legal luminaries like Dr SC Kashyap, former Secretary-General of the Lok Sabha, ex-Law Secretary, PK Malhotra and also Sanjay Singh, former Legislative Secretary. Significantly, he also sought the advice of K Parasaran, former Attorney-General.

Some opposition-leaders, however, thought of moving the apex court against the Vice-presidential fiat. But, Soli Sorabji, the eminent jurist, opined that such a move may hardly bring forth any meaningful gain. In his view, the Vice-President had found no merit in the motion and, hence, he had rightly rejected it.

However, there is another point. If the motion is accepted in a House of Parliament by at least two-thirds of its members, it is sent to the other House and if it is accepted by it with such special majority, only then would the accused have to step down by the President’s order. In the present situation, such a motion could not have secured the support of the required majority in both Houses.

Thus, according to Dr BC Rout, in such an affair the Constitution has provided for a “very rigid procedure”. The intention of the Founding Fathers was to ensure judicial independence and to give Judges a fair opportunity to act without fear and pressure. Similarly, SL Sikri opined that the ‘strict procedure’ is intended to ensure the independence, dignity and impartiality of the Judges.

In fact, the makers thought that if Judges could be thrown out of office on trifling grounds or by an easy method, then the integrity and independence of the judiciary would surely crumble. In reality, if such independence runs amok, it will trample all other values under foot.

It is, however, true that judges are human beings and, as such, they too are subject to some worldly frailties. For this reason, a way for the removal of a such a judge must remain open. But the ground of such removal must be specific and wall-defined and, also, the procedure should always be rigid and cumbrous.

Dr MV Pylee has aptly remarked that the higher judiciary “is the guardian of the Constitution and the law of the land”. So, the Judges should not be prematurely removed unless they are found guilty. Dr HH Das has held that the security of their service “is a vital factor which promotes and protects the independence of the Judges and the security of the people.”

Of course, we do not stand for any unwanted Judge, because it means the end of the Rule of Law and democracy. But an able, upright and honest judge should not become the victim of party-politics. They must be in the exalted job until they reach the age of retirement or are conclusively found to be black sheep.

The writer is a Griffith Prizeman and Former Reader, New Alipore College, Kolkata.