All you need to know about the impeachment notice against CJI Dipak Misra

New Delhi: Rajya Sabha Chairman M Venkaiah Naidu on Monday rejected the unprecedented notice by seven opposition parties led by the Congress to impeach Chief Justice of India (CJI) Dipak Misra on five grounds of “misbehaviour”, saying the allegations were neither “tenable nor admissible”.

But the order by the vice-president that came two days after the opposition parties launched the impeachment bid was slammed as “hasty” by the Congress, sparking a war of words with the ruling BJP.

The notice was dismissed at the preliminary stage of the multi-step impeachment process.

The order, which said that the Notice of Motion does not deserve to be admitted, also drew a mixed response among the legal fraternity. It was given shortly before the Supreme Court reassembled after the weekend recess.

Here’s what happened

Leaders of seven opposition parties had on Friday last met Naidu and handed over the notice of impeachment against the Chief Justice of India(CJI) bearing signatures of 64 MPs and seven former members, who recently retired.

They sought his impeachment on grounds of corruption, nepotism and manipulation of justice. The allegations against him range from misbehaviour and bribery to abuse of administrative power in allocating cases, besides a land allotment issue in Odisha.

The Opposition had first discussed moving an impeachment motion against Justice Misra in January, after four senior Supreme Court judges revolted against the CJI and held a press conference questioning his method of allocating cases.

A more immediate trigger that prompted the demand for Misra’s impeachment might have been the Supreme Court’s (SC) verdict dismissing the demand for an investigation into the death of CBI judge BH Loya. Congress leaders at a press conference said that they felt compelled to move such a motion since Justice Misra had not “asserted the independence of the judiciary in the face of interference by the executive”.

The impeachment process

The Constitution gives politicians the power to initiate removal proceedings against a Supreme Court judge, but the process is long and arduous. Section 4 of the Article 124, on the establishment and constitution of the Supreme Court, lays down the grounds for the removal of a judge. It says:

A Judge of the Supreme Court shall not be removed from his office except by an order of the President passed after an address by each House of Parliament supported by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present and voting has been presented to the President in the same session for such removal on the ground of proved misbehaviour or incapacity.

 

The procedure for the removal of a judge is elaborated in the Judges (Inquiry) Act, 1968. According to this Act, an investigation into a judge’s conduct can be initiated through a notice presented in either house of Parliament. If the motion is presented in the Lok Sabha, it needs to have the signatures of at least 100 MPs and if it is presented in the Rajya Sabha, it needs 50 signatories. In the Indian Parliamentary system, the vice-president is the Rajya Sabha chairman.

If the Lok Sabha Speaker or the Chairman, as the case may be, admits the motion, a three-member committee is set up to look into the allegations against the judge. The committee includes the Chief Justice of India or another Supreme Court judge, a High Court Chief Justice, and one other jurist selected by the Chairman or the Speaker. The committee then needs to “frame definite charges” on which the investigation should be led against the judge, the Act states. The judge in question needs to be informed of the charges and is then given time to submit a written defence.

After an investigation and cross-examination, if the committee finds that there are grounds to remove the judge, then the matter has to be taken up for consideration in the House in which it was introduced. At this stage, the judge can once again defend himself, either in person or through a representative in the House. As mentioned in Section 4, Article 124 above, that motion has to be accepted by a special majority. The process has to be repeated in the other House and if it still passes muster, then it has to be presented to the President for approval. The process is the same for the removal of a High Court judge.

The process has been criticised as being onerous and so far, no judge has been removed this way, though impeachment proceedings have been attempted against a few judges in the past.

What Naidu said?

Sources said that Naidu, who chairs the Rajya Sabha, arrived at the decision based on the opinion of top legal and constitutional experts, including former secretary generals of Lok Sabha and other legal luminaries with whom he held extensive consultations.

Naidu also took the views of top legal and constitutional experts, including former chief justices and judges, over the past two days before taking the decision, the sources said.

He said the allegations emerging from the present case have a “serious tendency” of undermining the independence of judiciary which is the basic tenet of the Constitution of India.

“I have considered the material contained in the Notice of Motion and reflected upon the inputs received in my interaction with legal luminaries and constitutional experts, I am of the firm opinion that the Notice of Motion does not deserve to be admitted,” Naidu said in the order.

“I refuse to admit the Notice of Motion,” he said.

Naidu said he had detailed personal conversation on all aspects arising from the notice and had considered each of the allegations made in it individually as well as collectively.

“Clearly this is an internal matter to be resolved by the Supreme court itself. Going through the five allegations mentioned in the notice, I am of the view that they are neither tenable nor admissible,” he said in his order.

“Based on all this, I have come to the conclusion that this motion does not deserve to be admitted…On careful analysis and reflection, I find there is virtually no concrete verifiable imputation,” he said.

The Rajya Sabha chairman said that after having perused annexures to the motion, detailed consultations and studied opinions of constitutional experts, he was “satisfied that admission of this Notice of Motion is neither desirable nor proper on any of these grounds”.

Naidu also held the “We cannot allow any of our pillars of governance to be weakened by any thought, word or action.”

“In the absence of credible and verifiable information placed before me which gives an indication of ‘misbehavior’ or ‘incapacity’, it would be inappropriate and irresponsible act to accept statement which have little imperial basis,” he said.

The reactions

Finance Minister Arun Jaitley called the notice a “revenge petition” after the Supreme Court rejected a plea for an independent probe into the death of judge BH Loya who presided over the Sohrabuddin Sheikh fake ancounter case.

“The Congress party and its friends have started using impeachment as a political tool. The power of impeachment under our Constitution is part of inter-institutional accountability… Trivialising the use of that power is a dangerous event,” said Jaitley in a Facebook post on Friday.

Senior Congress leader Kapil Sibal said the party would move the Supreme Court to challenge what he said was an “unprecedented, illegal, ill-advised and hasty order” which had “shattered” the confidence of people and “jeopardised” the legal system.

Sibal told reporters that the Chairman’s order jeopardised the country’s legal system and alleged that the government was not keen to see a probe into the case.

“The order is unprecedented, illegal, ill-advised and hasty,” Sibal said, adding that it had been passed without a full-fledged enquiry.

“We will certainly move a petition in the Supreme Court to challenge this order,” he added.

AICC media-in-charge Randeep Singh Surjewala also criticised the decision and said it was a fight between forces “rejecting democracy” and voices “rescuing democracy”.

Attacking the Congress for trying to “intimidate” judiciary, BJP spokesperson Meenakshi Lekhi thanked the Vice President for rejecting the petition. She alleged that after losing votes and support of people, Congress was resorting to the tactics of “threatening” and pressurising judiciary.

The five allegations of “misbehaviour” mentioned in the impeachment notice include a “conspiracy to pay illegal gratification” in the Prasad Education Trust case and the denial of permission to proceed against a retired high court judge in the same matter, according to Sibal.

Eminent jurist Fali S Nariman said the issues raised in the impeachment notice against the CJI were not of “sufficient gravity” and were “rightly rejected” by the Vice President.

But lawyer-politician Somnath Chatterjee,a former Lok Sabha, said Naidu acted in a “hurried manner”.
“This instance has set a bad precedent, which is not good for democracy,” he told PTI in Kolkata, adding that Naidu should have followed proper procedures before rejecting the notice.