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On July 29, 1947, the Constituent Assembly was gripped by a question: should the power to remove superior judges be vested in the President or Parliament? In the end, the view of Sir Alladi Krishnaswami Ayyar, former advocate general of Madras State, prevailed and the members decided that both Houses of Parliament, while acting on an impeachment notice, would exercise this power, if at all. For few members believed that this provisions would ever be used.
Whatever procedure you prescribe for the removal of judges for proved misconduct or misbehavior, that procedure is likely to e used only in the rarest of contingencies and very probably will not be used withing my life time or even the life time of those who are much younger in this House than I am," Sir N Gopalaswami Ayyangar had said in his concluding arguments that day, before the draft proposed by Ayyar was adopted.d Otherwise president, the wise men and women of the Constituent Assembly didn't anticipate what was fo follow.
Seventy years later, that very provision is at the heart of a tussle between the Oppositions and the ruling party. While the Opposition members of the Rajya Sabha have declared that they would challenge Rajya Sabha declared that they would challenge Rajya Sabha chairman Vankeya Naidu's ruling dismissing their notice for impeachment of Chief Justice of India Dipak Misra, the ruling combine has hailed the decisions as sound course of action.
Days after Naidu's ruling the judiciary and Executive were caught i another row. On april 26, Law minister Ravi Shankar Prasad wrote to the CJI, segregating the Supreme Court collegium's recommendation for appointing two judges to the apex court. While the government returned for reconsideration the collegium's recommendation to elevate Uttarkhand Chief Justice KM Joseph to the Supreme Court, it notified the appointment of Indu Malhotra as a judge of the apex Court.
Here again the ruling and opposition parties are divided over the course of events, with the spotlight now on the Judiciary's place in the delicately stitched constitutional space that it shares with the political class comprising the Executive and the legislature.
This space has been created and shaped by the Judiciary's evolving relationship with the Executive over three distinct eras.
Notwithstanding Ayyangar's belief that the provision for removal of judges will rarely be used, withing a year, even before the constitution was ready, the judiciary found itself staring at the removal of a high court judge.
An academic paper on 'The Evolution of Judicial Accountability in India' published in the Journal of Public affairs and Change by Bhairav Acharya,lawyer and policy specialist, recounts the removal of Alahabad HC judge Justice SHiv Prasad Sinha in July 1948 at the request of the erstwhile United Provinces Government. Since the Constitutions was far from final, Sinha was removed under Section 220(2) of the government of India Act, 1935, after an inquiry by the then Federal Court upheld one of the five charges against him.