The Supreme Court on Tuesday released the full text of its verdict that declared the 16th constitutional amendment illegal.
The amendment – passed on September 17, 2014 – empowered parliament to dismiss Supreme Court judges if allegations of incapability or misconduct made against them were found true.
However, the apex court’s own mechanism for removing judges has been initiated, and Supreme Judicial Council (SJC) and clauses 2, 3, 4, 5, 6 and 7 of article 96 of the constitution restored, with the amendment being scrapped.
Neither individual judges nor the judiciary should be accountable to the executive, because the branch of the state is inimical to judicial independence that is a necessary requirement for the judges to discharge their responsibilities to resolve any disputes fairly and impartially, the text reads.
The court in the 799-page appeal verdict expunged some remarks made by the High Court in its verdict regarding the members of parliament (MPs), saying courts or judges should have a mutual respect.
It also approved a code of conduct for the judges and said that failure to comply with the code would be considered a gross misconduct.
“Since this amendment is ultra vires the constitution, the provision prevailing before the substitution is restored. The appeal is accordingly dismissed,” the apex court said in the verdict.
On July 3 this year, a seven-member bench led by Chief Justice Surendra Kumar Sinha announced the short verdict on the amendment.
In the 5th amendment case, the apex court found the SJC, comprised of the chief justice and two senior most judges of the Appellate Division, a more transparent process of removing judges, Sinha mentioned in the judgment.
The court said: “The chief justice and judges are constitutional functionaries. They are not servants of anybody and have no master whatsoever. There is no master-servant relationship at all between them and anybody else, least of all other branches of the state.”
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The text reads: “The legislature is accountable to the electorate and the executive has…to account to those who put them in office. Judges are neither subject to periodic elections nor to censure. They serve until they reach the age of retirement. They may be removed only for proven misbehaviour or incapacity or gross misconduct.
“In their day to day functions, judges wield tremendous pressure. They are to review decisions of both legislative and executive branches. For judicial independence, it requires a guarantee that the judiciary is free from any interference…”
It goes without saying that judges being human being may make mistakes, some of which are unintentional but with devastating effects on individuals. Those mistakes may be rectified through several layers of appeal and review, it adds.
Judges can be removed following a due procedure. They cannot be removed or punished for bona fide errors or for disagreeing on a particular interpretation of law. Also, the judges act according to ethical standards and are held accountable if they fail to do so, the verdict states.
“International law clearly establishes that judges can only be removed for serious misconduct or incapacity. Disciplinary proceedings must be conducted by an independent and impartial body...”
About article 70, the bench said: “We are of the view that with article 70 in the constitution, it is difficult for a member of parliament to express an opinion independently ignoring the directives given by the high command of his/her political party.”
Chief Justice Sinha said that if the removal mechanism is left with the executive or the legislature, it will be difficult to accept the government’s view that the independence of judiciary will be protected.
“There will be threat to the judicial independence, and therefore, it is to be ensured that the removal process cannot be used as an instrument to penalise or intimidate Judges,” he added.
Generally, the courts do not interfere in policy decision, but there are certain situations in which they have no choice but to interfere, Sinha said.
He said: “It will be not correct to contend that the court shall lay aside its’ judicial hands when it comes to its notice that by a constitutional device, the executive wants to intrude into the judicial affairs, jeopardising its independence.”
Mentioning that the 16th amendment violated the constitution’s substratum, the chief justice said: “This amendment is not a policy decision. A policy decision cannot take a democratic government 42 years back. Also, the political environment and parliament that prevailed in 1972 cannot be equated with the present context.”