New Delhi: Judges of the higher judiciary under cloud for professional misconduct may not be able to frustrate impeachment proceedings against them simply by resigning, if a Rajya Sabha MP`s constitution amendment proposal goes through.
The option of quitting ahead of the impeachment, like former Sikkim High Court chief justice P.D. Dinakaran and former Calcutta High Court judge Soumitra Sen, should not be availabe to errant judges, nominated Rajya Sabha member and veteran journalist H.K. Dua has suggested.
He has proposed amendment to Articles 124 and 217 of the constitution that deal with the establishment of the Supreme Court and appointment and removal of judges. Dua has already given notice to move the bill for amendment in the monsoon session of parliament starting Aug 8.
"It is a question of integrity both of the individual judge and that of judiciary as an institution," Dua said in an interview.
"Institutional integrity, as the apex court had said while holding P.J. Thomas` appointment as central vigilance commissioner as non-existent in law, holds far more higher bench marks when it comes to the judiciary," he said.
The constitutional provisions under Articles 124 (2) and 217 (1) provide that the resignation of a judge of Supreme Court or that of a high court becomes effective immediately after it has been submitted to the president. The existing constitutional provisions do not shackle the resignation with the pleasure of the president for it becoming effective.
Dua`s proposed amendment to the constitutional provisions is rooted in Justice Sen`s resignation just before the Lok Sabha could take up the motion of his impeachment after it was overwhelmingly adopted by the Rajya Sabha.
Similarly, chief justice Dinakaran, facing charges of land grab meant for the weaker sections of society, put in his papers while an inquiry committee headed by was looking into the allegations. Inquiry by the committee was the step just before the actual impeachment process could be taken up against him by the Rajya Sabha.
As per the Judge`s (Inquiry) Act 1986, the impeachment of judges can be done on the grounds of "proven misbehaviour" and "incapacity".
If a judge has to be impeached then the recommendation has to be made by the chief justice of India to the president. If it is accepted then the proposal of impeachment must be introduced by 100 MPs in the Lok Sabha or 50 MPs in the Rajya Sabha.
The amendment proposed by Dua to Article 124 reads: "provided also that the resignation of a judge who is facing proceedings for his removal under clause (4) or against whom any proceeding is contemplated shall be subject to acceptance by the president".
The amendment proposed by him to Article 217 is: "provided further that the resignation of a judge who is facing proceedings for his removal under clause (4) of Article 124 or against whom any proceeding is contemplated shall be subject to acceptance by the president".
The Clause (4) of Article 124 provides for the removal of a judge through impeachment for his act of misbehaviour which includes acts of corruption or misdemeanour.
Dua said that the bill would debar errant judges of the higher judiciary who are facing impeachment proceedings get away by resigning. He said he was conscious of the fact that it was seldom that a private member bill was adopted by parliament and more so when it was a constitutional amendment.
He was optimistic that his move would get support of all sections of parliamentarians as it concerned upholding the integrity of the judiciary.
Nevertheless, Dua said that his proposed amendment would compel both the government and parties in opposition to spell out their position on such a sensitive issue.
"It is a beginning, which may or may not, succeed in the monsoon session but none can stop it from taking its logical course in times to come," asserted Dua.