A.G. Noorani*
* The author is an eminent Indian scholar and an expert on constitutional issues.
Impeachment won its highest importance in the late 18th century but now lies in a pathetic state of disuse, completely discredited. It was a fundamentally, inherently political device which fell on its own sword.
The pinnacle of failure was reached in the impeachment of Warren Hastings. At the very end of the parliamentary session in the summer of 1785, Edmund Burke pledged himself to initiate some kind of inquiry into the conduct of Warren Hastings (1732 – 1818) who had just returned to Britain after thirteen years as Governor and Governor General of Bengal. In May 1787, the House of Commons voted to impeach Hastings. Burke opened his case on 17 February 1788. In 1795, Hastings was acquitted.
Seven years’ delay was too much. King George III was against the impeachment. So was the Lord Chancellor, Lord Thurlow, who presided at the trial. There were other causes besides, as P.J. Marshall points out in his definitive and magisterial work (The Writings and Speeches of Edmund Burke: India, The Launching of the Hastings Impeachment 1786-1788, Oxford University Press, 1991; pg 13): The way Burke, the manager and his colleagues conducted the trial in contrast to the tactical skill shown by Hastings’ counsel; Thurlow’s rulings; and Burke’s long, long speeches. To this day, closet supporters of the Raj attack Burke’s “bombastic speeches”. The press was hostile to Burke. Hastings’ “well- paid” agents manipulated the press. It became a highly political drama before a politically biased House of Lords (vide also Marshall’s Volume VII India: The Hastings Trial 1789 – 1794; 2000; The History of the Trial of Warren Hastings, Esq;) from 7 February 1786 until his acquittal on 23 April 1795 (Debrett London, 1796; a collector’s prize; The Works of the Right Honourable Edmund Burke; Volume VIII; George Bell and Sons, London; 1881).
In his weighty work, ‘Parliament’, Ivor Jennings opined that “the procedure may now be regarded as obsolete” (Parliament; 1957; pg. 397.) In the 17th century, impeachment became a political weapon wielded by Parliament for striking out at unpopular royal policies. The King retaliated by giving royal pardon to Danby in 1679 to forestall an impeachment. The last impeachments were in 1713. Two others followed in 1788 and 1795; the latter became the very last in British history. The lesson was lost on India’s constitutional apes.
Those who drafted the Government of India Act, 1935 wisely provided for trial by the Judicial Committee of the Privy Council for the removal of a High Court Judge or of a Federal Court Judge. On Independence this was amended to require trial by the Federal Court. A judge of the Allahabad High Court was removed by the Federal Court after a fair trial.
It is to the great credit of the framers of the Constitution of the Islamic Republic of Pakistan that they provided in 1974 for the Supreme Judicial Council in Article 209 and rejected the alternative of impeachment.
The Constituent Assembly of India was misled by a member of its Drafting Committee who was a rank Conservative and a Knight of the British Empire. Hubris prevailed over good sense as is apparent from his speech in the Assembly.
“Then with regard to the removal of judges under the Constitution of 1935, the power was vested in His Majesty in Council and His Majesty would have the advantage of a Judicial body. Therefore, that was the basis of the Act of 1935. In cases of misconduct or misbehaviour, His Majesty in Council was clothed with the jurisdiction to initiate any proceedings against a Judge of the Federal Court or against a Judge of the High Courts in India. Under the present Constitution the suggestion that is made in certain quarters that the President of the Union with the advice of some Council or some Panel of Judges should have the power of is not, I venture to submit, a proposition which will meet with the acceptance of the House. That will bring the highest judicial dignitary in the land, the Chief Justice or the Chief Justices of the High Courts into the position of a member of the Indian Civil Service. Imagine the President appointing a special Commission, of a few judges to enquire into the conduct of the Chief Justice of India or the Chief Justice of the Provincial High Court. I should think that is not a position which will commend itself to the House. This particular provision which I have put in, namely, that “he shall not be removed from his office except by the President on an address from both the Houses of Parliament of the Union in the same session for such removal on the ground of proved misbehaviour or incapacity”, is in line with provision in the various Acts of the British Commonwealth. In Australia, in Canada, in South Africa, there is a similar provision and similarly from the date of the Act of Settlement in England it is only by resolution of both the Houses that a judge could be removed from his office. It does not mean that that power will normally be invoked. The best testimony to such power is that it has never been exercised. It is a wholesome provision intended to be a salutary check on misbehaviour, not intended to be used frequently, and I have no doubt that the future legislatures of India which are invested with this power will act with that wisdom and that sobriety which have characterised the great Houses of Parliament in other jurisdiction. Therefore, this provision with regard to proven misbehaviour, they may appoint a Committee of the House; it may be a case of secret session. But ultimately the Resolution will have to be passed by both Houses.”
M. Ananthasayanam Ayyangar disagreed:
“As regards the right to remove a Supreme Court Judge there is deep difference of opinion on this matter. One school of thought is headed by Sir Alladi Krishnaswami Ayyar, who has tabled an amendment that by an address presented by both Houses of the Legislature to the President, any judge or the Chief Justice of the Supreme Court may be removed from office. The amendment that I have tabled is that it is open to the President to appoint a tribunal consisting of not less than 7 High Court Chief Justices to investigate into this matter and come to a conclusion that the judge or judges ought to be removed for stated misbehaviour or similar reason. The President may then remove him. I have also tabled another amendment that a judge may be removed from office by the President on a report presented to him by a panel of judges appointed for the purpose. The objection of Sir Alladi Krishnaswami Ayyar is based on the reason that the highest authority so far as judicial work is concerned in the Union will be at the mercy of the executive head of the Union. It is true that the President will act on the report presented to him by a panel of judges, but in that manner the President’s authority is limited.
“It is in the fitness of things that a small body should go into the matter of the misbehaviour of a Federal Judge and recommend that he be removed. The entire body of the legislature consisting of 600 and odd members may find it difficult to investigate into the matter, themselves. Therefore, it is reasonable to suggest that both the Houses must be moved in the matter after a committee of judges has reported that it is a fit case for interference. I am not alone in making this suggestion. The Sapru Committee Report – Sir N. GopalaswamiAyyangar was a member of the Committee – has suggested that the President, in accordance with the report of the Tribunal to be appointed for this purpose, may be empowered to remove any judge of the Supreme Court. If Sir Alladi Krishnaswami Ayyar takes objection to this item in the Sapru Committee Report on the ground that it becomes an absolute power in the hands of the President to accept or reject, I could see no objection to his accepting my amendment in this respect which is a combination of both the judicial and executive authority.”
The Assembly was swayed by Sir Alladi and adopted his motion.
Impeachment was extended to the Chief Election Commissioner as well as to the Comptroller and Auditor General. In 1993 the chickens came home to roost. Parliament had enacted the Judges (Inquiry) Act, 1968 to lay down the procedure for an inquiry into charges for the final decision to go to Parliament to fulfill the test of “proved misbehaviour” by an Enquiry Committee of Judges.
It proved to be of no avail. The Committee found that Justice V. Ramaswamy of the Supreme Court was indeed guilty as charged. But Prime Minister P.V Narasimha Rao sent across an oral whisper to M.P.s of the Congress Party. The guilty judge escaped.
A sitting Chief Justice of India, Justice Sabyasachi Mukherji, characterised impeachment as being “practically impossible” in 1990, three years before the Ramaswamy case. In a report of the House of Commons Select Committee on Parliamentary Privilege recommended that the right to impeach, which has long been in disuse, be now formally abandoned.
In 1986 Professor Hearn called it “indeed a thing of the past.” American precedents were rich in cases of miscarriage of justice. Lord Pannick Q.C. suggests in his scintillating book, ‘Judges’, the appointment of a Judicial Performance Commission (Pg. 97). In 1982, the Canadian Judicial Council forced Justice Thomas Berger’s resignation from the Supreme Court of British Columbia because he had expressed his views on political matters.
Impeachment had a rather inglorious beginning and a worse end. But the greatest case of its use is still recalled with admiration and awe. This is because Edmund Burke’s speech has proved immortal. It was cited during the struggle for freedom. In 1909, a firm of publishers in
Calcutta published his opening speech in 2 volumes:
“No man can succeed to fraud, rapine, and violence, neither by compact, covenant, or submission, nor by any other means, can arbitrary power be conveyed to any man. Those who give and those who receive arbitrary power are alike criminal, and there is no man but is bound to resist it to the best of his power, wherever it shall show its face to the world. Nothing but absolute impotence can justify men in not resisting it to the best of their power.
“Law and arbitrary power are at eternal enmity. Name me a magistrate, and I will name property; name me power, and I will name protection. It is a contradiction in terms, it is blasphemy in religion, it is wickedness in politics, to say that any man can have arbitrary power. Judges are guided and governed by the eternal laws of justice, to which we are all subject. We may bite our chains if we will, but we shall be made to know ourselves, and be taught that man is born to be governed by law; and he that will substitute will in the place of it is an enemy to God…
“Therefore, I charge Mr. Hastings—and we shall charge him afterwards, when we come to bring the evidence more directly and fully home—with having destroyed, for private purposes, the whole system of government by the six provincial councils which he had no right to destroy.
“I charge him with having delegated away from himself that power which the act of parliament had directed him to preserve inalienably in himself.
“I charge him with having formed a committee to be mere instruments and tools, at the enormous expense of £62,000 per annum.
“I charge him with having appointed a person their diwan, to whom these Englishmen were to be subservient tools, whose name was—to his own knowledge, by the general voice of the Company, by the recorded official transactions, by everything, that can make a man known—abhorred and detested, stamped with infamy; and I charge him with the whole power which he had thus separated from the Council General and from the provincial councils.
“I charge him with taking bribes of Gunga Govind Sing.
“I charge him with not having done that bribe-service which fidelity, even in iniquity, requires at the hands of the worst of men.
“I charge him with having robbed those people of whom he took the bribes.
“I charge him with having fraudulently alienated the fortunes of widows.
“I charge him with having, without right, title, or purchase, taken the lands of orphans and given them to wicked persons under him.
“I charge him with having removed the natural guardians of a minor Raja, and given his zemindary to that wicked person, Deby Sing.
“I charge him—his wickedness being known to himself and all the world—with having committed to Deby Sing the management of three great provinces; and with having thereby wasted the country, destroyed the landed interest, cruelly harassed the peasants, burnt their houses, seized their crops, tortured and degraded their persons, and destroyed the honour of the whole female race of that country.
“Therefore, it is with confidence that, ordered by the Commons, I impeach Warren Hastings, Esquire, of high crimes and misdemeanours.
“I impeach him in the name of the. Commons of Great Britain in Parliament assembled whose parliamentary trust he has betrayed.
“I impeach him in the name of all the Commons of Great Britain, whose national character he has dishonoured.
“I impeach him in the name of the people of India, whose laws, rights, and liberties he has subverted, whose properties he has destroyed, whose country he has laid waste and desolate.
“I impeach him in the name and by virtue of those eternal laws of justice which he has violated.
“I impeach him in the name of human nature itself, which he has cruelly outraged, injured, and oppressed, in both sexes, in every age, rank, situation, and condition of life.”
(Professor A. Berriedale Keith’s Speeches and Documents on Indian Policy 1756 – 1921; Volume I; 1922; pages 150 – 153.)
