Congress leads 7 Opposition parties in bid to impeach CJI Dipak Misra

This comes a day after a Supreme Court bench headed by CJI Misra rejected a bunch of petitions seeking an independent investigation into the death of Judge B H Loya, who was hearing the Sohrabuddin Sheikh encounter case. READ | SC rules: No foul play in judge Loya’s death, pleas were bid to hit judiciary’s credibility

“We wish this day had never come,” said senior Congress leader Kapil Sibal, adding that the step has been taken “with a heavy heart” to protect the independence of the judiciary.

In their notice, the parties listed out five “charges of misbehaviour” against the CJI and argued that, as MPs, they are “entitled to hold the Chief Justice accountable” and that “the majesty of the law is more important than the majesty of any office.”

The five acts of alleged misbehaviour include charges related “to the conspiracy to pay illegal gratification by persons in relation to the Prasad Education Trust case and the manner in which the case was dealt with by the Chief Justice”. They also charged him with “abuse of exercise of power” in choosing to send “sensitive matters to particular benches by misusing his authority as Master of the Roster with the likely intent to influence the outcome.”

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One charge dates back to 1984 when the CJI was an advocate. The charge is that he acquired a piece of Government land by giving a “false affidavit”.

Senior Congress leader Kapil Sibal said: “The convention has been that whenever such charges are levelled against the Chief Justice of a High Court or the Supreme Court, he has to refrain from discharging his judicial functions. That is the convention. And I hope this convention will not be violated.”

The move, however, revealed chinks in Opposition unity as only seven parties, Congress, CPM, CPI, NCP, SP, BSP and the IUML, have signed on the motion.

The Trinamool Congress and the DMK are not signatories. While the notice for impeachment bears 71 signatures, Leader of Opposition in the Rajya Sabha Ghulam Nabi Azad said they have requested the chairman to exclude the names of seven of them as they have retired from the Upper House.

Azad claimed the move has nothing to do with the Supreme Court verdict in the B H Loya case. He said the Opposition had sought an appointment with the Vice President a week ago but could not meet him since he was out of station. “Had he been here, we would have given it a week ago,” he said.

Azad said the motion seeking the CJI’s removal under Article 217 read with Article 124 (4) of the Constitution was submitted also on behalf of those parties which had not signed. While Azad said he expected “positive action” from the Vice President, Sibal said “I don’t think such charges can be ignored.”

In a press statement issued after submitting the motion, the parties, however, mentioned the Loya case and the press conference held by the four seniormost judges of the Supreme Court, Justices Jasti Chelameswar, Ranjan Gogoi, Madan B Lokur and Kurian Joseph, in January. It said that ever since Chief Justice Misra was appointed, “there have been situations when questions have been raised about the manner in which he has dealt with certain cases and taken certain administrative decisions. “

Referring to the press conference by the four Judges, Sibal said: “We were hoping that the anguish of the judges as reflected in their statements to the Press would be addressed by the Chief Justice and the Chief Justice in response would set his house in order. More than three months have passed. Nothing has changed.”

“Recent communications of two senior judges to the Chief Justice reveal that the Chief Justice has not asserted the independence of the judiciary in the face of interference by the executive. When the judges of the Supreme Court themselves believe that the judiciary’s independence is under threat and democracy in peril, alluding to the functioning of the office of the Chief Justice of India, should the nation stand still and do nothing?”

“Should the people of this country allow the institution to diminish and not protect it both from within and without? …The Constitution allows only one recourse to remedy the situation. Since there is no other way to protect the institution except to move an impeachment motion, we, members of the Rajya Sabha, do so with a heavy heart,” he said.

Elaborating the charges, Sibal said they suggest conduct unbecoming of a person holding the office of the Chief Justice of India.

“The first charge relates to the conspiracy to pay illegal gratification by persons in relation to the Prasad Education Trust case and the manner in which the case was dealt with by the Chief Justice,” he said. Sibal said “there are several recorded conversations between middlemen including a retired judge of the Orissa High Court (and) references to the Chief Justice by innuendo in these conversations are evident.” The opposition has attached excerpts of the transcripts with the petition.

“The denial of permission to the CBI to register an FIR against Justice Narayan Shukla of the Allahabad High Court, when the CBI shared incriminating information with the Chief Justice was itself an act of misbehaviour. All this requires a thorough investigation,” he said.

The second charge relates to the order by a bench headed by the Justice J Chelameswar on a petition seeking a court-monitored inquiry in the Prasad trust matter. Sibal found fault with the CJI deciding to hear the matter himself in which he “too was likely to fall within the scope of investigation.”

“The practice in the Supreme Court is that when the Chief Justice is in a Constitution Bench, and matters are to be listed, requests for listing are made before the first puisne judge….On November 9, 2017, when a writ petition was mentioned before Justice Chelameswar at 10:30 am since the Chief Justice was sitting in a Constitution Bench, the same was directed to be listed later the same day.”

“When the matter was taken up, a note dated November 6, 2017 was placed before the judges hearing the matter by an official of the Registry,” he said. Sibal said the note of November 6 was brought to the attention of Justice Chelameswar on November 9 as the matter taken up was antedated. “The charge of antedating is by all accounts a very serious charge,” he said.

On the charge that the CJI, when he was an advocate, acquired land by giving an affidavit which was found to be false, Sibal said “Despite the orders of the ADM cancelling the allotment in 1985, the Chief Justice surrendered the land only in 2012 after he was elevated to the Supreme Court.”

On why only seven parties have signed the petition, Azad said “there are parties who have signed, there are parties who have not signed…but all are supporting it.” He claimed there is consensus on the matter among the Opposition parties. On what the Congress would do if the Vice President rejects the notice, Sibal said “There are many ways in the Constitution.”

“We hope that a thorough enquiry will be held so that truth alone triumphs. Democracy can thrive only when our judiciary stands firm, independent of the executive, and discharges its constitutional functions honestly, fearlessly and with an even hand,” Sibal said.

On why former Prime Minister Manmohan Singh did not sign the motion, Sibal said, “We did not want to involve Dr Singh, he being a former PM.”

Once the notice for impeachment is submitted, the Rajya Sabha chairman will ascertain if there is merit or ground for moving such a motion or can reject it. He may form a committee to look into it, if he finds merit in it. If the impeachment notice is rejected, the Congress is likely to move the Supreme Court against the decision of the chairman, sources said.