Rajya Sabha Chairman M Venkaiah Naidu on Monday rejected the unprecedented notice submitted by seven Opposition parties on a motion for impeachment of Chief Justice of India Dipak Misra, citing “absence of credible and verifiable information” on proved “misbehaviour or incapacity” and use of phrases that suggest MPs themselves were “unsure of their own case” and were acting on “mere suspicion”, “conjecture” or “assumptions”.
The decision was arrived at after the Vice President held extensive consultations with legal luminaries, government law officers and former Rajya Sabha secretaries general.
Refusing to admit the notice of motion, Naidu, in a ten-page order, said: “In the absence of credible and verifiable information placed before me which gives an indication of ‘misbehaviour’ or ‘incapacity’, it would be an inappropriate and irresponsible act to accept statements which have little empirical basis. As heirs to an illustrious democratic tradition and custodians of the present and future of democratic polity, we should, in my view, collectively strengthen and not erode the foundations of the grand edifice bequeathed to us by the Constitution makers.”
“We cannot allow any of our pillars of governance to be weakened by a thought, word or action… after having perused annexures to the motion and having detailed consultations and having studied the opinions of Constitutional experts, I am satisfied that admission of this Notice of Motion is neither desirable nor proper,” he said.
Last Friday, a delegation led by Leader of Opposition in Rajya Sabha Ghulam Nabi Azad and comprising MPs from Congress, SP, BSP, IUML, NCP, CPM and CPI met Naidu and submitted the notice for an impeachment motion, following it up with a press conference where they discussed its contents without releasing the document.
The Opposition had brought five charges against CJI Misra. The notice alleged that in the Prasad Education Trust case “prima facie evidence suggest(s) that CJ Dipak Misra may have been involved in the conspiracy of paying illegal gratification in the case” and that the judge “dealt on the administrative as well as judicial side, with a writ petition which sought an investigation into a matter in which he too was likely to fall within the scope of investigation since he had presided over every bench which had dealt with this case” which “violated the first principle of the Code of Conduct for judges”.
It also alleged that Misra “appears to have antedated” an administrative order. Digging into his past, the Opposition also alleged that he had “acquired land while he was an advocate, by giving an affidavit that was found to be false and despite the orders of the ADM cancelling the allotment in 1985, surrendered the said land only in 2012 after he was elevated to the Supreme Court”.
While rejecting the order, Naidu said that use of phrases such as “may have been”, “appears to have antedated” and “he too was likely” in the notice suggest that the MPs are “unsure of their own case” and are acting on mere suspicion, conjecture or assumption.
In going into the merits of the motion itself, Naidu cited a 1993 judgment of the Supreme Court in the M Krishna Swami vs Union of India case which said that “before admitting the motion, it may be expected and may be prudent that the Speaker may consult persons like the Chief Justice of India, the fountainhead of judiciary, and the Attorney General of India… it is also equally salutary that before admitting the motion to remove the judge, there shall exist factual foundation”.
“The grounds mentioned in the motion, the material of evidence placed in support thereof and the advice tendered, if consulted, would form ‘the record’. He (Speaker) would consider that record and filter the process before deciding to initiate proceedings or refusal thereof,” the judgment stated.
A top source in the government, countering the Opposition Congress charge that that the Chairman exceeded his brief in going into the merits of the allegations against the Chief Justice, said: “Merely signatures of 50 Rajya Sabha members does not trigger impeachment. The Chairman of Rajya Sabha has to satisfy himself under Section (3) of the Judges Inquiry Act before instituting an inquiry.”
The Judges Inquiry Act, the source pointed out, states: “the Speaker or, as the case may be, the Chairman 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 refuse to admit the same”.
“Even Article 124 of the Constitution outlines ‘proved misbehaviour or incapacity’ as the ground for impeachment. This proved misbehaviour has to colour the entire proceedings from the beginning itself. Mere allegation of misbehaviour simply is not sufficient. Even the complainant must be convinced about it,” the government source said.
“Article 317 of the Constitution pertaining to removal of the Chairman or any other member of a Public Service Commission, which is a Constitutional office, is based ‘on the ground of misbehaviour’. While the requirement for removal of Judges is ‘proved misbehaviour’. This clearly shows that the founding fathers of Constitution gave further security cover for the higher judiciary than the public service commission,” the source said, underlining the stringent requirements before proceeding with formal impeachment proceedings in any House of Parliament.
Naidu, who cut short a visit to Telangana Sunday, consulted among others Attorney General K K Venugopal, former Supreme Court judge Justice B Sudershan Reddy, former Attorney General K Parasaran, former Secretary General of Rajya Sabha V K Agnihotri, former Secretary General of Lok Sabha Subhash Kashyap, former Law Secretary P K Malhotra, former Legislative Secretary Sanjay Singh and senior officials of the Rajya Sabha secretariat.
The order clarified that the Chairman could not have consulted the CJI since the motion pertained to him.
In his order, Naidu also mentioned that violation of the handbook for members of Rajya Sabha — it forbids advance publicity to any notice submitted by a member — had necessitated a speedy decision on his part to end “needless speculation” following a “spate of statements in the press that seem to vitiate the atmosphere”.