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My advice to those who want to move to impeach the chief justice of India

Rajeev Dhavan
Rajeev DhavanApr 02, 2018 | 10:42

My advice to those who want to move to impeach the chief justice of India

There is a move to impeach Dipak Misra, chief justice of India (CJI). The initiating event under the Judges (Enquiry) Act, 1968, is either 50 members in Rajya Sabha or 100 in the Lok Sabha. Sitaram Yechury is discussing feasibility of numbers with the Congress who are divided on this.

Even if they gather 50 in Rajya Sabha, it is for the chairman (vice president) to admit the motion “after consulting such materials, if any, that are available to him.” The Constitution protects the independence of the judiciary and canvasses “removal on the ground of proved misbehaviour or incapacity.” The two are mutually exclusive. Incapacity (loss of mind) includes incapacity to misbehaviour. CJI Misra is far from “incapacitated” — as acute as ever. So, the charge has to be one of “misbehaviour”, which means corruption, bribery, gross miscarriage of justice or conduct unbecoming.

Onerous process

We need to know now, rather than later, what is the basis of the case against him. The standard is “beyond all reasonable doubt” to ensure judicial independence. Yechury, the Congress or others must bonafide believe they have such a case. Such motions are not “try-your-luck” motions. Then, a committee of three members, including a Supreme Court judge, high court chief justice and one jurist, will be appointed to frame charges and report findings.

Parliament will then have to pass with an absolute majority and two-thirds voting, sending it to the President in the same session. The present motion, if any, must now come for due process to be followed and decided in the monsoon session before CJI Misra retires on October 2, 2018.

cji_040218101000.jpgPhoto: Mail Today

The time-table is tight, and due process onerous as behoves removing a judge by impeachment. The committee cannot be dictated to. Under the Judges Act, 1968, the “chosen” members will be by the chairman. Or will it?

In the past, the CJI has had a say as impeachments were of HC judges, and in one case (V Ramaswami) of the SC. In this case, Misra is the CJI. His four “accusers” in the famous January 2018 press conference were the next top senior judges — Chelameswar, Gogoi, Lokur and Joseph. Who will be consulted? Will it be Sikri? Or would that be misplaced.

Proved “misbehaviour” can neither be a peccadillo, nor a “wrong” judgment. Unless tainted by bias. CJI Misra is usually cordial, unlike Arun Mishra. That is not the stuff of which impeachments are made. The charge made by the four senior judges was that he defied the “roster” and sent controversial cases to the benches he desired. It may be recalled that CJI Khehar also sent a case to a bench where his son was mentioned. Arguing counsel felt it should have dealt with administratively through proper investigation rather than dismiss on the judicial side.

Judge Loya

If the charge is drawn from the unprecedented January episode, the weaker charge was that he did not follow the roster. CJI Misra remedied this by declaring a new roster which, despite angularities, is unexceptional. The stronger charge is — bench fixing for a desired result by particular judges. Generally, there is huge concern about the Judge Loya case and the Sohrabuddin encounter in which the government is interested. We cannot assume that the judges to whom the cases were sent are corrupt unless proved without doubt.

Chief Justices have varying experiences with the government. The upright CJI Thakur was driven to tears by the government for not making appointments. In the Khehar period, it was questionable why the triple talaq and WhatsApp cases were prioritised for vacation hearing. CJI Misra, too, has followed an agenda coinciding with the government, such as the Delhi government case, Aadhaar or the Babri Masjid case; and issuing notices on Muslim polygamy, among others.

Weak case

I don’t think CJI Misra was right to follow an in-house procedure to indict Justice Narayan Shukla in January 2018, for having “disgraced judicial values and conduct unbecoming”. The only inquiry to do this is through impeachment procedure.

CJI Misra’s management of his board to stagger hearings in important cases is unfortunate. But this is not impeachable. His judgments, like the Criminal Defamation case — articulate a language unheard of in the English speaking world. But such gobble-de-gook is vanity, not misbehaviour. He has failed his duty to carry his colleagues with him, however, idiosyncratic they may be. Though uncomfortable, this does not necessarily amount to proven misbehaviour or conduct unbecoming.

In the past, the impeachment of V Ramaswami reached the House, but the “South MPs” abstained to deny success. Some high court Judges were persuaded to resign (Bhattacharya, Madan).

In CJI Punchchi’s case, there were not enough MPs. Some resigned during the impeachment process (Soumitra Sen, Dinakaran, Prem Kumar). Some were acquitted by the committee (Gangele). Should proceedings be started against CJI Misra? The recurrent questions are: Did he fix benches to achieve a desirable result? Were the other judges “fixed”? Can we say that he was, the BJP government’s “man” in material particulars?

Before we start any impeachment, the charge must be carefully and fully spelt out by the MPs. It is not a question of numbers. The judiciary is a pivotal institution without which the Constitution would collapse. It must be criticised when criticism is due. But impeachment is another matter where the vigilant must proceed with caution.

(Courtesy of Mail Today)

Last updated: April 03, 2018 | 15:26
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