Opposition Moves Impeachment Notice Against CJI: Will Misra Now Follow Judges Who Resigned/Changed At First Hint Of Loss of Trust?

NEW DELHI: The Opposition leaders met Rajya Sabha Chairman Venkiah Naidu with an impeachment notice against the Chief Justice of India Dipak Misra this morning. Almost 70 MPs had signed the motion to initiate impeacement proceedings that is unprecedented in history. And a major blow as it is indicative of a loss of trust in CJI.

Opposition leaders told The Citizen that the dismissal of all petitions asking for a probe into the death of Justice B.H.Loya by the 3-Judge Supreme Court bench led by the CJI was the final straw on the camels back. As the sources said, the notice although signed by more than the requisite 50 MPs by the end of March had been kept on hold by the Opposition with several MPs wanting to adopt a ‘wait and watch’ position. The Congress party was divided, with others like the DMK and Trinamool Congress in two minds.

After the dismissal of the petitions as “scandalous” by the apex court yesterday, the decision to go ahead with the impeachment initiation was “almost unanimous.”

Senior lawyer Prashant Bhushan, who is being consulted by the political parties on the issue given his long standing experience had told The Citizen earlier, that the Vice President would have to accept the motion so long as it was signed by the requisite 50 MPs from the Rajya Sabha (100 from Lok Sabha) and the charges were specific to “misconduct”.

The draft note, a copy of which is with The Citizen makes five charges against the Chief Justice. These are listed as:

1. The facts and circumstances relating to the Prasad Educational Trust case, show prima facie evidence suggesting that Chief Justice Dipak Misra may have been involved in the conspiracy of paying illegal gratification in the case, which at least warrants a thorough investigation.

2. That the Chief Justice Dipak Misra (allegedly) dealt on the administrative as well as judicial side, with a writ petition which sought investigation into a matter in which he too was likely to fall within the scope of investigation since he had presided over every bench which had dealt with the case and passed orders in the case of Prasad Educational Trust, and thus violated the first principle of the Code of Conduct for Judges.

3. That the Chief Justice Dipak Misra appears to have antedated an administrative order dated 6th November 2017 which amounts to a serious act of forgery/fabrication.

4. That Chief Justice Dipak Misra (allegedly) acquired land when he was an advocate, by giving an affidavit that was ( reportedly) found to be false and (allegedly( despite the orders of the ADM cancelling the allotment in 1985, surrendered the said land only in 2012 after he was elevated to the Supreme Court.

5. That Chief Justice Dipak Misra has (allegedly) abused his administrative authority as master of roster to (allegedly) arbitrarily assign individual cases of particular advocates in politically sensitive cases, to select judges in order to achieve a predetermined outcome.

Chief Justice Dipak Misra is currently hearing petitions regarding Babri Masjid dispute, Aadhaar case and other constitutional bench cases before him. It remains to be seen whether the charges hold scrutiny, and whether Vice President Naidu admits the petition submitted.

Technically, the Chief Justice of India, like the President of India or for that matter any senior Judge, can be impeached. Article 124 gives the legislature the power to act as a watchdog, and a restraining agency, on the judiciary. But the process is sufficiently complex to ensure that this cannot be done frivolously, and is one of the reasons that impeachment proceedings in the past have failed each time. Not a single Judge has been impeached in India so far.

The complexity of the process is the result why the power has been exercised judiciously by Parliament in the past. It has also, thus, made it sufficiently exclusive to act as a major moral comment against the concerned Judge, even if defeated within Parliament.

The petition against the CJI Chief Justice of India Dipak Misra this will amount to a major censure, as it will be first such move against a CJI. It will also register a deficit of trust in the Chief Justice of the Supreme Court of India, with the press conference by four senior serving Justices having raised sufficient doubts about his functioning. The failure to resolve the issue of the roster and the constitution of the benches is being raised by Yechury as the major reason behind the move.

The steps are complicated. Given the current composition of the House, the Opposition might not be able to take the impeachement process further than the first step. Art 124(2) Proviso (b) Art 124(4), Art 124(5) and the Judges Inquiry Act 1968 all come into play for such an impeachment.

-. A notice of motion is thus first given by 100 Lok Sabha MPs or 50 Rajya Sabha MPs.

For this of course the Opposition has the numbers and signatures now.

- Speaker or the Chairperson of the Houses respectively can then refuse, or accept.

In all probability it will not be accepted by either the Speaker or the Chairperson, the Vice President of India.

- Even if the last, seemingly improbable step is cleared, a committee will then be constituted of one Supreme Court Judge, Chief Justice of a High Court and a distinguished jurist. This committee will then frame definite charges against the judge, in this case the CJI, in question. The Committee will function like a bench and cross examine witnesses if it so wishes.

After it completes the exercise it will submit a report to Parliament. At this stage the Committee can exonerate the Chief Justice as in this case, and the proceedings will be dropped entirely.

- In case the committee upholds the motion, this will have to be adopted by both Houses of Parliament with a two thirds majority

Even a joint Opposition does not enjoy this majority currently. Besides Parliament can choose not to act even if the committee finds the Judge guilty.

- if this stage is cleared, which it has not been in earlier cases, the President is approached to dismiss the Judge. He can do so only after both Houses have passed the motion in favour of removing the Judge.

Improbable, if not impossible.

There is a not very long list of Judges who have faced such action.. And a quick look at the list shows that the impeachment proceedings have never really been completed, but at the same time have triggered resignations regardless.

Soumitra Sen, Justice of the Calcutta High Court, came closest to impeachment in 2011 as the Rajya Sabha passed the motion making him the first judge to be so charged in the Upper House for misappropriating Rs 33 plus lakhs under his custody as a court appointed receiver in his capacity as a lawyer, and misrepresenting facts before the Calcutta High Court in a 1983 case. He resigned before the Lok Sabha could complete the procedure

P.D Dinakaran, the Chief Justice of the Sikkim High Court, faced a judicial panel to look into allegations of corruption. He resigned in July 2011 before impeachment proceedings could be initiated against him by Parliament.

J.B. Pardiwala, Justice in the Gujart High Court, faced an impeachment notice by 58 Rajya Sabha MPs in 2015 for “objectionable remarks on the issue of reservation.”

He had said, “If I am asked by anyone to name two things which have destroyed this country or rather have not allowed the country to progress in the right direction, then the same is, (i) Reservation and (ii) Corruption. It is very shameful for any citizen of this country to ask for reservation after 65 years of Independence. When our Constitution was framed, it was understood that reservation would remain for a period of 10 years, but unfortunately, it has continued even after 65 years of Independence.”

He removed the wordings from his judgement within hours after the impeachment notice was sent by the Rajya Sabha to then chairperson and Vice President Hamid Ansari.

V. Ramaswami, Chief Justice of Punjab and Haryana, was the first judge against whom impeachment proceedings were initiated in 1993 by a motion through the Lok Sabha. He came under scrutiny for extravagant spending on his official residence with the Supreme Court Bar Association also passing a resolution for his impeachment in 1991.

The two thirds majority for passing the motion was lost as the Congress abstained. Significantly, he went on to contest the elections in 1999 as an ADMK candidate against Vaiko from Marumalarchi Dravida Munnetra Kazhagam. Ramaswami lost the election in the peoples court as well.

The impeachment motion in itself amounts to a no confidence of sorts and as the above list has shown, it has exercised a major impact on the Judges under scrutiny.

This motion notice now is the first of its kind against a Chief Justice of India who is currently under a major controversy because of the press conference by four seniormost serving judges of India. Besides having a major political impact insofar as the judiciary in itself is concerned.