With the Rajya Sabha passing impeachment motion against Calcutta high court judge Soumitra Sen, a general impression was created as if he has been “crucified” for the simple reason that the event has taken place in the history of Indian Parliament for the first time. But if seen in the constitutional perspective this is simply an exercise to remove a constitutional authority from his post.
Though Justice Sen has chosen to resign before the Lok Sabha could take up the motion to complete the constitutional requirement, an atmosphere of inquisitiveness about the while exercise has been created.
There are certain posts created in the Constitution by its framers with express provisions for their appointment and removal. These are President, vice-president, Chief Justice of India, judges of the Supreme Court and high courts, Comptroller-General and Auditor-General and Chief Election Commissioner and Election Commissioners.
If these constitutional authorities are found indulging in a conduct unbecoming of their positions, the provisions have been laid down in the Constitution itself for their removal through impeachment by Parliament if they refuse to quit voluntarily.
However, the exercise has been made very cumbersome to ensure that the holders of the constitutional posts do not fall victims of any “vilification” campaign from any quarter.
That is why the motion has to be signed by 100 MPs of the Lok Sabha if introduce it in the Lower House and 50 MPs of Rajya Sabha in case moved in the Upper House. Before any further legislative action on the motion, the charges have to be probed by a judicial panel of three members, headed by a Supreme Court judge.
In this context the forced removal of Delhi high court judge Shamit Mukherjee and Rajasthan HC judge Arun Madan in 2004 by the then Chief Justice of India V.N. Khare was noteworthy as he virtually “coerced” them to resign on the face of serious charges of judicial misconduct.
Justice Khare had threatened them that he would permit the CBI to register FIRs against them, which could have led to their arrest while in office when they cited the procedure of impeachment for their removal.
Justice Khare later had explained that he was of the view that impeachment was a very cumbersome exercise, which makes the removal of a judge virtually impossible. His observation proved correct as the CBI in the “cash-on-doorstep” could only proceed against Punjab and Haryana high court judge Nirmal Yadav after her retirement in 2010 for the want of prior permission from the CJI, which came a day before her demitting the office.