Impeachment motion

Erroneous decision

Print edition : May 25, 2018

Vice President M. Venkaiah Naidu. Photo: PTI

Vice President M. Venkaiah Naidu’s rejection of the motion to remove Chief Justice of India Dipak Misra from office suffers from certain flaws.

The recent events that played out across various stages in Lutyens’ Delhi have shocked the public. An independent judiciary is a pillar of democracy and demolition of the same is not an act to be applauded but one to be reviled.

Dipak Misra is merely one in a long line of jurists who have occupied the office of the Chief Justice of India (CJI). The office of the head of Indian judiciary is not defined by his actions. The judicial system is far larger than just one man and his alleged indiscretions.

In the motion submitted seeking his removal from office, five alleged indiscretions of the CJI have been cited. While these may require scrutiny, a trip down memory lane might serve us better.

Justice Ramaswami case

In 1991, a motion to remove Justice V. Ramaswami was submitted to the Speaker of the Lok Sabha. Kapil Sibal, a senior advocate then, represented the judge before the Supreme Court and Parliament. The motion was admitted by the Speaker, but before an inquiry committee could be formed as per Section 3(2) of the Judges (Inquiry) Act, 1968, the House dissolved. The Sub-Committee on Judicial Accountability filed a writ before the Supreme Court praying that a committee be formed and the charges be investigated.

Further, it was also prayed that during the pendency of the proceedings before the committee, Justice Ramaswami should be restrained from performing judicial functions and from exercising judicial powers.

The Constitution Bench of the Supreme Court (vide order 1991 4 SCC 699) stated that the removal proceedings did not lapse with the dissolution of the House, but refused to restrain Justice Ramaswami from performing judicial functions. Subsequent to this order, an inquiry committee as provided for under Section 3(2) of the Judges (Inquiry) Act, 1968, was formed to investigate the allegations made against him.

A writ petition was then filed by M. Krishna Swami (WP(C) No. 149 of 1992) with a view to subverting the Supreme Court’s orders in the Sub-Committee on Judicial Accountability case. This petition called into question the powers vested in the Speaker of the Lok Sabha under Section 3 of the Judges (Inquiry) Act, 1968.

Kapil Sibal, who stridently represented the writ petitioner and indirectly the judge, argued that the Speaker’s powers under the Judges (Inquiry) Act were violative of Article 124 of the Constitution and prayed that the notice of motion moved against Justice Ramaswami and its admittance by the Speaker of the Lok Sabha be quashed and that the committee formed subsequently be held void ab initio.

The Supreme Court saw through the elaborate hoax being perpetuated by the writ petitioner and his lawyers and gave the petitioner an option to implead the party concerned, that is, Justice Ramaswami. But Sibal refused to implead him. The Supreme Court, in a 4:1 majority, dismissed the petition and noted that the petition was an attempt to challenge the order passed in the Sub-Committee on Judicial Accountability case and that it was a bad non-joinder of necessary parties.

However, it is crucial to note that in the Krishna Swami case, the apex court upheld the Lok Sabha Speaker’s right to admit or dismiss notices of motion for removal of judges as per his discretion.

Simultaneous to the writ petition filed by Krishna Swami, Justice Ramaswami’s wife, Sarojini Ramaswami, filed a writ petition wherein the judge submitted a letter stating that even though he was not a party to the proceedings, he would be bound by the judgment passed in the same. This writ petition prayed for reliefs identical to those mentioned in the writ petition filed by Krishna Swami. Not surprisingly, Sibal appeared for her.

The inquiry committee formed to investigate the charges against Justice Ramaswami filed a report, and when the matter came up for vote in the Lok Sabha, the Congress, which is crusading for the independence of the judiciary now, abstained from voting. Apparently, the Congress’ zeal to eradicate the alleged rot from the judicial system is new-found. It is clear that Kapil Sibal’s stance today is in direct contravention to his stance in 1991. Sibal has performed an admirable volte-face and has swung from aggressively protecting a judge’s rights and independence to directly attacking the CJI. The Congress, which had no difficulty in abstaining from voting when the removal of Justice Ramaswami was on the floor, has now lent its support to some of its members filing a notice of motion to remove the sitting CJI from his office.

While appearing for Justice Ramaswami, Sibal propounded the role of the Speaker/Chairman in admitting or dismissing a motion filed for the removal of a judge. Ironically, it is his arguments in the Krishna Swami case that M. Venkaiah Naidu relied on to dismiss the notice of motion filed by Sibal.

Burden on Vice President

The procedure for removal of a sitting judge has been laid down in Article 124 (4) of the Constitution. Further, the Judges (Inquiry) Act, 1968, deals with the minutiae involved in removal of judges. Section 3 of the Judges Inquiry Act is unambiguous and states that when a notice of motion has been moved in the Rajya Sabha with more than 50 signatures, as in the present case, the Chairman of the Rajya Sabha “may, after consulting such persons, if any, as he thinks fit and after considering such materials, if any, as may be available to him, either admit the motion or not admit the same”.

It is clear from the bare reading of the Section 3 of the Act that the Chairman of the Rajya Sabha is vested with complete discretion to admit or dismiss a motion to remove a Supreme Court judge. Only when a motion is admitted is an inquiry committee to be formed. Further, the Chairman of the Rajya Sabha is not bound to lay out before the House his reasons for admitting or dismissing a motion to remove a judge.

In the present case, the Chairman, after consultation with several eminent jurists, the Attorney General and the Law Minister, has chosen to dismiss the motion to remove CJI Misra from office. There is no question that the Chairman was well within his rights to dismiss the motion. However, the manner of dismissal is found to be distasteful in the present case.

The Chairman has not acquitted himself to the best of his capabilities and has fallen short of discharging the constitutional duty cast upon him. He is expected to assimilate the information put before him vide a notice of motion and reach a well-informed conclusion as to whether the motion warrants admission or rejection.

The order passed by Venkaiah Naidu does not inspire confidence that he applied himself to the charges before him and found them baseless. The dismissal of the notice of motion seems to have been done by rote. He has even erroneously relied upon the minority opinion in the Krishna Swami judgment. Further, a reading of the entire paragraph upon which he relies makes it apparent that he has not discharged his duty as delineated by the apex court. The minority opinion of the single judge in the Krishna Swami case is far more nuanced than what the Chairman has stated. The portions of the minority opinion preceding and succeeding the extracted portion relied upon by Venkaiah Naidu follow:

“The primary requisite which the Speaker is enjoined to do is to find whether the motion was signed by not less than 100 members of the House of the People. Equally, he is required to consider the grounds and the materials, if any, available to him, before taking a decision to admit or refuse to admit the same. The word ‘may’, though couched with discretion, when the exercise of the power affects the rights of the judge, causes convulsions on judiciary and generates psychological setback on ongoing process, the Speaker was authorised to wisely exercise discretionary power by consulting such persons, if any, as he may have chosen and thinks fit to be consulted. … He would equally keep in his gaze and in the mind the seriousness of the imputations, nature and quality of the record before him and ‘its indelible chilling effect on the public administration of justice and independence of the judiciary in the estimate of the general public’. Existence of definite material or evidence in support of the grounds of the motion, before initiation of the motion for removal of the judge is, thus, a condition precedent. Lest it would be an open invitation to initiate, for obvious reasons, proceedings to remove the judge and then resort to collecting perjured evidence in support thereof against the judge which is subversive of judicial independence and a death-knell to rule of law. Action [sic] in any other way, the Speaker would forfeit the trust reposed by the founding fathers of the Constitution in that office as well as the confidence of the House of People, i.e. the people of Bharat themselves. The fact that the committee framed charges from the record transmitted by the Speaker fortifies that he had before him definite material and it furnishes presumptive inference that he had made due consideration thereof before admitting the motion” (Paragraph 45).

A reading of the above obiter dicta shows that the Chairman has been remiss in his duties. His order is hasty and ill-conceived and serves to make it appear that the CJI is hand in glove with the government. Clearly, he would have done well to do more as the allegations levelled against the CJI are easily verifiable. Moreover, the Chairman is obligated, under Section 3(1) (a) of the Judges Inquiry Act, 1968, to consider the motion placed before him and give a detailed order justifying his decision.

Whatever the merits of the allegations against the CJI, the need of the hour is not the removal of the CJI but greater transparency. Even the CJI’s detractors and peers are not calling for his removal but are instead demanding more clarity and accountability.

The Judges (Inquiry) Act, 1968, has certain safeguards built into it with the sole view of fending off mala fide actions on the part of Members of Parliament submitting the motion.

But the order of dismissal by the Chairman of the Rajya Sabha has served to cast more aspersions on the CJI. If the motion had been admitted and an inquiry committee set up as envisaged under the Act, it might have cleared the CJI and the removal would not have come to pass, if there is no substance in the allegations against him.

Balaji Srinivasan is an Advocate-on-Record practising in the Supreme Court.

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