Abstract

The Constitution (Sixteenth Amendment) Act, 2014 (Act No. XIII of 2014) reinstated the original provision of the Constitution that the Members of the Parliament would remove the Judges of the Supreme Court. A group of lawyers challenged this Act on the ground of violation of the independence of judiciary as basic structure of the Constitution. The High Court Division by majority (2:1) made the Rule absolute. Thereafter, the Appellate Division vide its Judgment and Order dated 03.07.2017 unanimously dismissed the Appeal and held that under Article 96 of the Constitution, the Supreme Judicial Council is responsible for the removal of the Judges on the ground of misconduct or incapacity. It was further held that the removal of Judges by the Parliament would violate the theory of separation of power as one of the basic structures of the Constitution. Our Apex Court also disapproved the argument of judicial restraint on the ground that nobody should be the judge of his own cause ‘nemo judex causa sua’. Following the publication of this Judgment, a tension between the Executive and the Judiciary surfaced and the then Hon’ble Chief Justice was forced to leave the country.