Chief Justice of India Dipak Misra inaugurates a creche facility at Supreme Court in New Delhi, May 2. (Press Trust of India)
The Supreme Court (SC) of India has got trapped in a swirl of controversy as the Congress-led opposition attempts to move the country’s politico-judicial system into a completely virgin territory, writes Priyanka Bhardwaj.
Sixty-four Members of Parliament from seven political parties, namely the Congress, National Conference Party, CPI-M, BSP, CPI and IUML, besides retired Parliamentarian D.P. Tripathi and eminent lawyer K.T.S. Tulsi, submitted before the Upper House (Rajya Sabha) Chairman and Vice President, Venkaiah Naidu an impeachment notice against the sitting Chief Justice of India (CJI), Dipak Misra.
It is for the first time that an impeachment motion against an incumbent CJI is being pursued to this extent.
The Constitutional provisions for impeachment as denoted in Article 124 (4), the Judges (Inquiry) Act, 1968 and corresponding rules mandate proving of charges of misbehavior or incapacity of the CJI.
To this end it stipulates five steps: minimum number of signatories of an impeachment motion to be 100 Lower House (Lok Sabha) members or 50 Rajya Sabha MPs, acceptance or rejection of this notice by either Speaker of Lok Sabha or Chairman of Rajya Sabha, an Inquiry Committee seeking a written response from the judge and filing of a report, then passage of the motion in both Houses of the Parliament by a special two-thirds majority.
While the ruling Bharatiya Janata Party (BJP)-led NDA enjoys a majority in the Lok Sabha, it is still short of one in the Rajya Sabha.
The impeachment motion lists five allegations against Misra – his controversial judgment in the Medical Bribery case, in connection to the Prasad Education Trust case, misuse of authority as Master of the Roster system, illegal acquisition of land, and allotment of sensitive cases to particular benches.
In his ten-page order in which he summarily rejected the motion Naidu argues that charges of misbehavior are untenable and unsubstantiated to warrant an impeachment.
He says that the motion use of phrases suggesting that the CJI ‘may’ have been involved in a conspiracy of paying illegal gratification indicates that the entire motion is based on “mere suspicion, conjecture or assumption.”
He further suggests political parties respect the sanctity of the SC and allow it to resolve its matters, as desired by the revered framers of the Constitution.
The decision to reject the notice has found support amongst almost all eminent legal luminaries and constitutional experts.
Foremost among them is Fali S. Nariman, who states that in his judicial career spanning 67 years he has never seen such a controversy that demeans the judiciary and [acting on just suspicion] sets a dangerous precedent.
He cites the absence of former Prime Minister, Manmohan Singh, from the list of signatories which shows that he too must have found the allegations baseless, and called upon the four judges who had participated in the January press briefing to clarify their stand on this matter.
Furthermore, he cautioned the judiciary to not get drawn in the politics in view of the next year’s General Elections and also warned the government from interfering in the matters of the judiciary.
Buttressing Nariman’s views, former Solicitor General who also represented Kulbhushan Jadhav in the International Court of Justice, Hairsh Salve asserted the of the judiciary and criticized the Congress and politically motivated lawyers for attempting to disparage the constitutional institution.
Salve recalled his warning of May 2014 when he predicted attempts to destabilization of the polity through constitutional means and pointed to the brazen retaliation unleashed by the ruling Congress against the top three adjudication judges in the post 1973 Kesavananda Bharati Vs. Union of Indiaverdict.
He even suggested it is time to punish “the intent to malign and undermine the Constitution” with contempt of court and jail to those who are labeling the CJI as a bench fixer.
However, the dust refuses to settle on this matter that first came into existence in mid-January when the top four judges of the SC summoned a press conference to vent that “democracy of the nation is at stake” thereby prompting political parties to fish in troubled waters.
Regardless of the motion’s rejection, Congress’ Kapil Sibal who is spearheading this impeachment motion with the blessings of Congress Chief Rahul Gandhi, Sibal has resolved to file a writ to challenge Naidu’s decision in the SC.
He asserts that decision on the motion is the job of the Judges (Inquiry) Act and by rejecting the motion the Rajya Sabha Chairman has breached his privilege by acting as a quasi-judicial authority.
Though Sibal has tried hard to present a picture of general ‘consensus’ for the impeachment, prominent leaders such as former Prime Minister Manmohan Singh, P. Chidambaram, Abhishek Manu Singhvi, Salman Khurshid, all Congressmen and former Ministers in the UPA regime have stayed away from the motion.
Members of Dravida Munnetra Kazhagam who had earlier signed the motion had later retracted, and both the Trinamool Congress and Rashtriya Janata Dal felt the effort to dislodge Misra whose term is due to end in October a sheer waste, especially in the face of paucity of substantial evidence and a majority in Lok Sabha.
Significantly, as the impeachment motion came a day after the SC ruling in the CBI Judge B.H. Loya’s death case, in which Bharaitya Janata Party’s (BJP) Amit Shah was acquitted, Union Finance Minister Arun Jaitley slammed it as a “revenge petition.”
Whispers in political corridors suggest that the motion is more of a recusal nature rather than an impeachment one as it seeks to compel the CJI to recuse till October when he is due to retire and which case would lead to an inevitable delay in the hearing of the highly flagrant Babri Masjid case, over which Sibal made fervent pleas to the court.
In recent months the CJI-led Bench that included Justices Chandrachud and Khanwilkar had dismissed Public Interest Litigations filed by proxies of the Congress in the Judge Loya case and passed judgments such as the one in the Sunanda Pushkar murder case that were unfavorable to prominent Congress leaders.
Then there is also the National Herald a case of alleged offences of misappropriation of property, criminal breach of trust and cheating in which the Congress President Rahul Gandhi and his mother Sonia Gandhi are involved.
Gleaning from the facts it would be plausible to surmise that the motion aims to delay justice along with denting the image of the Narendra Modi-led government before the 2019 elections.
Therefore, in this game the impeachment, recusal or humiliation of this particular CJI would be a mere collateral damage.