CJI Dipak Misra impeachment case: Kapil Sibal, Congress efforts to subvert process scuttled by Supreme Court

Impeaching a judge of the Supreme Court or a high court, we have believed in this country for decades, is the toughest nut to crack. Giving judges fixed tenures and making their removal near-impossible was one of the most important safeguards for judicial independence built into the Constitution.

There has not been even one instance of a judge being actually impeached by Parliament for "misconduct or impropriety" in 71 years, although some came very close to meeting such a fate. This has further cemented the belief that the higher judiciary has been adequately protected from either trampling by the government of the day or the machinations of the political class as a whole.

That belief was sought to be shaken on Tuesday by Kapil Sibal, and by logical extension, his party, the Congress. While all our attention had been focussed on the fight between the Supreme Court collegium and the NDA government, an equally vicious attack on the independence of the judiciary has come not from the government, but from the Opposition — the Congress, in particular.

Representational image. AP

Representational image. AP

In the Supreme Court, Sibal, a Congress Member of Parliament and the moving force behind the motion to impeach Chief Justice Dipak Misra, signalled a process that attempted to rip open this cape of protection and make impeachment of the Chief Justice of India as easy as coming up with few half-baked allegations backed by signatures of more than 50 MPs.

The apex court ​dismissed Sibal's petition as withdrawn.

Rajya Sabha Chairman Venkaiah Naidu had earlier rejected the motion for impeachment helmed by Sibal and signed by 65 MPs on the grounds that they were mere allegations and even those who were making the allegations were not sure of them. But Sibal was not done trying to trivialise a serious constitutional process. He argued in favour of the petition moved in the Supreme Court by two Congress MPs — Pratap Singh Bajwa from Punjab and Amee Harshadray Yajnik, against the Chairman’s ruling.

Sibal told the court on Monday, while mentioning the petition, that the Chairman of the Rajya Sabha exceeded his authority in "adjudicating" on the motion, while the law merely required him to refer the matter to a committee for verifying the allegation brought upon the Chief Justice.

What Sibal tried to do was to bring down the entire edifice of the impeachment structure by removing the first brick in the protective wall. He wanted the constitutional bench to rule that the moment more than 50 MPs move a motion, Section 3 (2) of the Judges Inquiry Act of 1968, must kick in and the process of impeachment must begin.

This section mandates that the Speaker of Lok Sabha or the Chairman of Rajya Sabha (depending on where the motion originates) should constitute a committee "for the purpose of making an investigation into the grounds on which the removal of a judge is prayed for".

Section 3 (3) of the Act lays out that once the Committee is formed, it "shall frame definite charges against the judge on the basis of which the investigation is proposed to be held" and Section 3 (4) says the committee will communicate the charges framed against the accused judge and give the person "a reasonable opportunity of presenting a written statement of defence".


To Sibal, in his zeal to undermine the office of the Chief Justice of India — and the very institution of the Supreme Court — the section that precedes Sections 3 (2, 3 and 4), that is Section 3 (1), means nothing. This section clearly delineates the role of the presiding officer as more than that of a postman.

It is unambiguous in the powers vested in the presiding officer saying that if the motion meets the preliminary requirement (signature of more than 100 MPs if it originates in Lok Sabha or more than 50 MPs in the Rajya Sabha) "then, 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".

Mark the words "either admit the motion or refuse to admit the same". At the outset itself, the law is very clear that the presiding office has the powers to consider the material on record and decide to either admit the motion or reject it. Even Section 3 (2), that talks about setting up the committee to investigate the charges against the judge, begins with these words: "If the motion referred to in sub- section (1) is admitted…". It is conditional "if the motion is admitted".

The committee comes into existence only if the presiding officer admits the motion. But the legal eagle that he is, Sibal argued that the committee should come into existence the moment a motion is moved because only the committee has the power to investigate and verify the charges, not the presiding officer.

Lawyers are known to operate in the cracks and crevices of the law. Here Sibal was hellbent on creating a crevice where none exists. For, if the Supreme Court had actually bought his illogic and allowed the matter to go to a committee, then it follows that the Chief Justice of India would have had to be benched for most of his remaining tenure (he retires on 2 October). Crucial cases that the CJI is hearing would grind to halt and at least in one of them, the Ramjanmabhoomi-Babri Masjid case, Sibal's wish of putting it off till after the 2019 election, would become a reality.

This was a guerrilla attack on the independence of the judiciary. If the power of the presiding officers to admit or reject a motion were allowed to be smashed, the impeachment motion would become so simple that all it would take to get rid of a judge politicians don't like would be to collect more than 50 signatures and a few allegations.

This petition had only one place: The dustbin of the Supreme Court. It's a good thing it was confined to such a place.

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Updated Date: May 08, 2018 17:50:52 IST

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