The five-member constitutional bench of the Supreme Court led by Acting Chief Justice Hari Krishna Karki delivered a landmark verdict on the Sunil Ranjan Singh and others versus the government case.
The court observed that the process of impeaching a constitutional post holder can start only if the motion is approved by the House of Representatives and if it sends the motion to the impeachment motion recommendation committee for further action. This means a constitutional post holder will not be suspended immediately after an impeachment motion is filed against him/her in the Parliament.
Singh had filed a writ of certiorari and mandamus after 249 lawmakers of Nepali Congress and CPN-Maoist Centre filed impeachment motion on 30 April 2017 against then chief justice Sushila Karki.
The motion was withdrawn after a single bench of Justice Cholendra Shumsher JB Rana stayed the suspension of CJ Karki. The court offered its interpretation at a time when political parties often issue threats of filing impeachment motion against judges and constitutional post holders, resulting in their automatic suspension.
The SC quashed the petition as the government had later withdrawn the motion.
CJ Sushila Karki has also retired from service, but the apex court passed rulings interpreting the spirit of the Article of impeachment motion provisioned in Article 101 of the constitution.
Justice Ananda Mohan Bhattarai supported the majority verdict but also wrote his own opinion about Article 101 (5).
The SC said if there was appropriate and adequate grounds for impeachment of a judge, such motion could be filed and ultimately the judge could be removed, but this weapon should not be invoked without appropriate and adequate grounds. If impeachment against a judge is allowed on the basis of artificial principle, efforts to maintain constitutional balance, ensure good governance, and adopt the concept of translating constitutionalism into practice will be in jeopardy.
The SC passed the verdict on November 23, the full text of which was released yesterday.
The top court said he constitution did not give the Secretary General or any office bearer of the Parliament, the right to impeach a constitutional post holder. The SC said unless the HoR decides to initiate the process of impeaching a constitutional post holder, including judges, and unless it sends the impeachment motion to the impeachment recommendation committee for action, it cannot be deemed that a process of impeaching a constitutional post holder has begun. It said the motion registered by lawmakers cannot be deemed a decision of the HoR. Unless the HoR approves the impeachment motion and initiates due process, the impeachment motion cannot be deemed to have begun.
"HoR members' impeachment motion is merely a proposal and hence registration of such proposal cannot be determined as the beginning of impeachment motion," the SC observed.
The court cited Indian practices where a judge is not suspended until the impeachment probe committee recommends the same and the objective and intention of Article 101 is the same. The constitution does not give power to the speaker to suspend a judge.
In this case too, the court said the spirit of the constitution and parliamentary regulations was that impeachment motion should be concluded as soon as possible and it should not be made a bargaining tool.
Former chief justice Cholendra Shumsher JB Rana retired from his service without the Parliament taking a call on the motion against Rana.
General impeachment motion is a matter of the Parliament, but it is an established principle that the motion can become a matter of judicial review if such a proposal has been filed with malice and prejudice or with the motive of controlling the judiciary, the SC observed. It said the Parliament can exercise its privilege only within the limit of the constitution and parliamentary regulations.
The court said the provisions of Article 105 meant that although lawmakers could debate the impeachment motion about a judge's conduct, the Parliament cannot discuss issues that the judges deal with in the course of adjudication of cases.
An attempt to justify an anti-constitutional act on the pretext that impeachment motion is the Parliament's prerogative cannot be justified, the SC observed. As the impeachment motion was filed due to the SC verdict on the promotion of a Nepal Police officer to the post of IGP, this was an act of revenge.
The constitution has provisioned separation of power and checks and balances. As the Supreme Court is the final arbiter of law, it is the duty of the judiciary to test the legality and constitutionality of any act, the SC observed.
The bench cited portions of former US Chief Justice William Rhenquist's book on the American practice of impeachment where the author said "Judicial acts would not be a basis for removal from office by impeachment and conviction."
The court said the British impeachment recommendation committee had stated that impeachment motion was irrational.
If the Parliament is allowed to impeach judges on the basis of adjudication of cases, the Parliament would change into a body that reviews the court's verdict and hear the appeals against the court."
There is no example where a judge was impeached on the basis of his/her judicial act. The court observed that there is not a single case in India where a judge has been removed through impeachment and in the last 220 years, not a single process of impeaching a Justice has been initiated.
Article of impeachment should not be invoked as an act of political revenge.
Senior Advocate Mithilesh Kumar Singh said the apex court's verdict was a good judgement as it highlighted the fact that there must be reason for any action and if an action is not based on reason, then that must not be accepted. He said the SC's interpretation conformed with the spirit of the constitution. If registration of impeachment motion is allowed, a Damocles' sword will hang over all the judges all the time," Singh said and added that judges should not be impeached just because they have delivered a particular verdict in a particular case.
Justice Ishwar Prasad Khatiwada wrote the majority opinion which Acting CJ Karki, other Justices Anil Kumar Sinha and Bishowambhar Shrestha concurred with. Justice Ananda Mohan Bhattarai wrote his supporting opinion in the Sunil Ranjan Singh and others versus the government case, saying sanctity of the constitution can be maintained only if impeachment motion is filed to remove a bad and incompetent judge, not as a means to settle political score.
He said Article 101 (5) of the constitution allowed three members of the HoR to get impeachment recommendation committee active, when Article 101 had already provisioned for invoking the Article of impeachment if the motion was supported by one-fourth members of the HoR.