ALL eyes are on Rajya Sabha Chairman M Venkaiah Naidu who has to take the next step to either quash or let the process move forward on the Opposition notice for an impeachment motion against Chief Justice of India Dipak Misra.
The view in top echelons of the government is that the Opposition’s move “not only has no ground but is also bereft of arithmetic” in the Rajya Sabha. Said a top government functionary: “The only issue is at what stage it will be dismissed.”
But if history is precedent, not admitting the notice will be unusual.
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For, in four of six instances, notices for moving impeachment motions against Supreme Court and High Court judges were admitted and followed up with the constitution of inquiry committees. In a fifth case, the judge “corrected” his verdict before the panel could be set up. The only time a notice was rejected was in 1970 when then Chief Justice reached out to the Speaker and convinced him that the issue was frivolous.
The top government source did not see the necessity of the Chief Justice of India stepping aside from his judicial function until the motion is admitted for inquiry by the Rajya Sabha Chairman.
“This question (of CJI stepping aside) arises when the motion is admitted for inquiry by the Chairman,” said the source. “The mere submission of a notice for moving a frivolous motion should not be a ground for stepping aside as it would be prone to be misuse”.
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According to Article 124(4) of the Constitution of India: “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.”
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The next provision, Article 124(5), says that “Parliament may by law regulate the procedure for the presentation of an address and for the investigation and proof of the misbehaviour or incapacity of a Judge under clause (4)”.
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Since the notice meets the first requirement of the Judges (Inquiry) Act, 1968 and the Judges (Inquiry) Rules, 1969, bearing the signatures of 64 members of the Rajya Sabha against the requisite 50, Naidu may, after due consideration and consultation, admit or refuse to admit the motion. If he does admit the motion, he will be required to set up a committee of three members: one each from amongst (i) the Chief Justice and other Judges of the Supreme Court; (ii) Chief Justices of the High Courts; and (iii) distinguished jurists. Obviously, given that the notice is against the Chief Justice himself, he cannot be a member.
The committee’s job (in case the matter reaches that stage) will be to frame specific charges against the CJI on the basis of which an investigation is proposed to be held. The panel will have the powers of a civil court in respect of summoning people for an examination on oath and production of documents.
The report of the committee, containing its findings on each of the charges separately, along with its observations, will be placed before the House. If the Committee absolves him of the charge of any misbehaviour, the motion will rest where it is. It will not be proceeded with.
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If the report gives a finding that the he is indeed guilty of any misbehaviour, the motion, together with the report of the Committee, will be taken up for consideration by the House.
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If at all the motion is adopted as mandated under the Constitution, the misbehaviour of the CJI will be deemed to have been proved and an address to the President praying for the removal of the Judge will be presented in the prescribed manner by each House of Parliament in the same Session in which the motion has been adopted.
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There is no clarity about the number of judges who recused or were denied judicial and administrative work, after a notice of motion was given by the requisite number of MPs. Lawyer Raju Ramachandran told The Indian Express that the concerned judge would have to recuse from all work after the inquiry committee frames charges against him or her. But this being the case of the Chief Justice of India, a different and more stringent yardstick of propriety could apply to him, he added. (with Sushant Singh)