Removal of Judges: CJ sees crisis if there's no two-thirds majority in JS

Chief Justice Surendra Kumar Sinha yesterday said there would be a crisis if two-thirds majority in parliament cannot be secured for removing a judge over serious allegations raised under the 16th amendment to the constitution.

It's a matter to ponder what would happen then, as some provisions in the 16th amendment leave a scope for creating a vacuum, he said.

The chief justice made the observation during a hearing on an appeal against a High Court verdict that scrapped the 16th amendment.

A seven-member bench headed by the CJ heard the appeal yesterday for the seventh day.

The amendment empowered parliament to remove an SC judge for incapacity or misbehaviour. Two-thirds majority in the House is needed for that.

Following a writ petition filed by nine SC lawyers, the HC on May 5 last year declared the amendment illegal. The government on January 4 this year filed an appeal with the SC, challenging the HC verdict.

The apex court will resume the hearing on the appeal at 11:30am on Sunday.

During yesterday's hearing, the chief justice said a political party may or may not have majority in parliament.

“There may be a hanging parliament. What will happen then?” he asked.

Yesterday, three amici curiae (friends of court) -- Advocate TH Khan, Barrister M Amir-Ul Islam and Barrister Rokanuddin Mahmud -- placed before the SC their opinions in writing against the 16th amendment to the constitution.

On behalf of TH Khan, his son Afzal H Khan submitted to the top court a statement saying the parliament, which passed the bill on the 16th amendment, is illegal, as the election through which it was elected was illegal.

TH Khan said it would be better if the amendment is scrapped.

The veteran jurist noted that the Supreme Judicial Council, which was empowered to probe allegations against judges and make recommendations for their removal, should be made stronger and more powerful.

Barrister Amir-Ul Islam told the SC that the judiciary deals with the allegation of misconduct against any judge under the rules similar to those in European and Commonwealth countries.

Most of these countries have moved away from the system of removing judges through parliament and delegated the responsibility to judicial council, he said.

Barrister Rokanuddin Mahmud told the apex court that parliament has not been given the authority to remove secretaries or police and military personnel over allegations of misconduct.

“Why the responsibility of removing judges, who sit at the top in terms of education and dignity, will be vested in parliament?”

Will there be any independence of the judiciary and dignity of judges if the authority to remove them rests with parliament? he questioned.

There would be “chaos” if the Supreme Judicial Council ceases to exist, said the jurist.