PIL Seeking Ban On Public Discussion On Impeachment Motion Against Judges: SC Refuses To Frame Guidelines

The Supreme Court bench of Justices A. K. Sikri and Ashok Bhushan on Monday adjourned the hearing to the third week of July in the PIL seeking the restriction of the media from publishing, broadcasting, printing, transmitting, or circulating any information as to discussions and deliberations pertaining to the proposed impeachment of Supreme Court and High Court judges, in the light of the recent Notice of Motion for the removal or Chief Justice Dipak Misra, signed by 64 Rajya Sabha MPs.

The PIL, instituted by NGO In Pursuit of Justice, also prays for guidelines/ modalities to be laid down, in respect of regulating the procedure to be followed by the Members of the Parliament, desirous of initiating proceedings for removal of a Judge of the Supreme Court or a High Court, prior to initiating proceedings for removal of a Judge of the Supreme Court or a High Court, prior to initiating a motion under Article 124(4) and (5) and 217 (1)(b) of the Constitution of India and other consequent reliefs.

“The purpose is to prescribe guidelines for all times to come”, advanced Senior Counsel Meenakshi Arora, appearing on behalf of the petitioner NGO.

“Why would you presume such instances would arise time and again?”, asked the bench on a humorous note.

Ms. Arora drew the attention of the bench to the 195th Law Commission Report on the Judges Inquiry (Bill) of 2005- “There is a Bill of 2005 that has not been enacted into a law since 13 years...the Law Commission in its report had recommended confidentiality in respect of the proposed initiation of the removal procedure as well as of the allegations levelled against a judge for his impeachment...it had recommended that any such disclosure in public domain would amount to an offence...all over the world, such measures have been regarded indispensable in the interest of the dignity and for the independence of the judiciary... the Parliamentarians not know better than the common man?”

It may be noted that The Bill of 2005 proposed the introduction of the ‘complaint procedure’ in addition to the earlier ‘reference procedure’ contained in the Judges (Inquiry) Act of 1968. In a ‘complaint procedure’ a complaint can be made by any person to Judicial Council against Judges of the Supreme Court (except the Chief Justice of India), Chief Justices and Judges of High Courts. In the ‘reference procedure’, if there is a Motion by Members of Parliament in either House, the Speaker/Chairman can make a reference to Judicial Council for inquiry not only against the above Judges but also against the Chief Justice of India. There is provision for preliminary scrutiny and verification by the Judicial Council in the ‘complaint procedure’ though not in the ‘reference procedure’. In the place of the three-Member Committee under the 1968 Act, the Bill of 2005 proposes the constitution of a Judicial Council of five Judges consisting of the Chief Justice of India, two seniormost Judges of the Supreme Court and two seniormost Chief Justices of the High Court and they will investigate and inquire into allegations arising out of a complaint or a reference. Where the allegations are proved, in the case of a ‘complaint procedure’, the Council shall submit its report to the President of India who has to forward the same to Parliament and in the case of a ‘reference procedure’, the Council shall submit its report to the Speaker/Chairman who made the reference.

The Law Commission of India, in its 195th Report, had recommended inter alia that There should be confidentiality of the entire complaint proceedings, starting from the complaint, till ‘minor measures’ are imposed by the Council or in case the Council recommends removal till its recommendation as to removal is placed in the Parliament. The complainant and the witnesses should also be prohibited from giving publicity about the allegations in the complaint, name of the complainant or witness or the name of the Judge. Any breach of confidentiality should amount to an offence. It was further recommended that the above provisions as to confidentiality, shall be notwithstanding anything contained in the Right to Information Act of 2005.

On Monday, Ms. Arora contended that The Judges (Inquiry) Act of 1968, in so far as it regulates the procedure for the investigation and proof of the misbehaviour or incapacity of a judge of the Supreme Court or of a High Court and for the presentation of an address by Parliament to the President, “takes over at a later stage”, while the present petition relates to the relay into the public domain of information and discussions at the nascent stage.

The bench seemed unconvinced of the requirement for the Court to stipulate guidelines.

When Attorney General K. K. Venugopal recommended that the Law Commission may frame such guidelines as may be deemed appropriate, the bench suggested disposing off the petition with a direction to the Law Commission in that behalf.

“Please consider the prayers atleast on the touchstone of Article 121 (restraining discussion in the Parliament in respect of the conduct of Supreme Court and High Court judges in the discharge of their duties except upon a motion for presenting an address to the President praying for the removal of the Judge)...”, persisted Ms. Arora.

Agreeing to deliberate on the validity of any discussion in the public domain as to the proposed impeachment in the light of Article 121, the bench scheduled the PIL for hearing in July, noting that “there is no urgency as of now”.