Opposition attempt to remove Chief Justice of India Dipak Misra is nothing but political gimmick, say experts

Preparing the ground to move a motion for removal of Chief Justice of India Dipak Misra in Parliament, a group of MPs belonging to opposition parties have discreetly collected signatures and the move is on to get more numbers in the list. The group of MPs have levelled allegation of abuse of power against CJI Misra.

"More than 40 MPs have signed on the draft of impeachment motion, which was circulated among opposition MPs. Besides Congress, MPs from the Left, SP, BSP, RJD, etc have signed. The final decision on this is yet to be taken," one of the signatories, a Congress MP told Firstpost on condition of anonymity.

File image of Chief Justice of India Dipak Misra. News18

In an unprecedented move in January this year, Justice J Chelameswar, the second senior-most judge in the Supreme Court along with Justices Ranjan Gogoi, Madan Lokur and Kurian Joseph apart from holding a presser, wrote to the CJI that some important cases were "assigned by the Chief Justice of this court selectively to benches 'of their preference' without rational basis".

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Will the opposition succeed in the move?

According to constitutional experts, the said move is a political gimmick, and the opposition party MPs won’t be successful in getting the motion through.

Even if the opposition succeeds in moving a motion against the CJI, the process would not reach closure before October, when Chief Justice Misra retires.

The opposition also does not have the required numbers to secure a two-third majority in both the Houses.

What legal fraternity says?

Supreme Court lawyer Sandeep Mahapatra said, "It’s a politically motivated move by the sponsors (opposition). They want to create roadblocks for the hearing of Ram Janambhoomi case and Muslim marriage practices. In the past Congress had moved a similar motion against a sitting SC judge only to retreat later. There is no ground to bring the motion for removal of the CJI and it’s only an act driven by malice."

Another SC lawyer, on condition of anonymity, said, "It is aimed at creating pressure on the CJI, who will set up a few important benches. According to a section within the judiciary and in political circles, the CJI is considered as having a Right-leaning approach. They have an apprehension that the benches will be formed on those lines."

Wrong usage of the word ‘impeachment’

As per the Constitution of India, the word ‘impeachment’ is not used for the removal of judges because it is explicitly used in Article 61 for the removal of the President of India.

Constitutional experts have stated the use of word 'impeachment' as incorrect and impeachment motion is not applicable in the case of judges. It’s applicable only in the case of the President of India.

"There is no impeachment in the case of judges. The term has wrongly been used. The Article 124 of the Constitution mentions the procedure for the removal of a judge, whereas Article 61 deals with the procedure of impeachment of the President of India. So, in the first instance, it needs to be corrected," Subhash C Kashyap, an authority on Indian Constitution told Firstpost.

What constitutional experts say?

"A judge can be removed by moving a motion for removal of a judge on grounds of incapacity and misbehaviour. Either 100 members in the Lok Sabha or 50 members in Rajya Sabha can give a notice to the Speaker or Chairman. It’s a very tedious process and so far there hasn’t been a single success, though such move was made against a few judges," said Kashyap.

Another constitutional pundit SK Sharma explained, "To remove a judge, the charges against him/her have to be extremely serious in nature. If the motion is moved in the Lower House, an inquiry is set up in the Upper House to look into the charges."

He added, “It’s a tedious and long-drawn procedure, and may take more than a year. The opposition needs to secure a two-thirds majority to get the motion passed, which is not possible in their case. Simply, they don’t have the numbers. It’s more a political gimmick and aimed at creating noise. No matter how hard they try, they won’t be able to do it.”

A few cases in the past

Motion for removal of judges have been moved in the past as well, but none succeeded — whether it was against Justice V Ramaswami or against Justice CV Nagarjuna Reddy.

V Ramaswami:A Supreme Court judge, Justice Ramaswami was the first one against whom removal proceedings were initiated in independent India. The motion was moved in the Lok Sabha in 1993. The motion failed to secure two-thirds majority in the House. He got into a controversy of spending extravagantly on his official residence when he was Chief Justice of Punjab and Haryana High Court in 1990s. The said decision was challenged before the Supreme Court and the apex court upheld the decision of the Parliament.

Soumitra Sen: Situations were such in the case of Justice Sen of Calcutta High Court that he would have become the first judge to have got removed. The motion was first moved against him in the Rajya Sabha. There was an allegation against him of misappropriation of public fund of Rs 33.23 lakh in 1983, which he had received from the high court as a receiver in a case. An inquiry headed by the then Rajya Sabha chairman Hamid Ansari found the allegation correct. In order to save himself from indignity, Sen resigned from his office in 2011 before the motion for his removal could be initiated in the Lok Sabha.

PD Dinakaran: There were 16 charges including corruption, land grabbing and abuse of judicial office framed against Justice Dinakaran, who was the Chief Justice of Sikkim High Court. The Rajya Sabha chairman had set up a panel to look into the allegations. But, before removal motion could be initiated against him, Dinakaran resigned in July 2011.

JB Pardiwala: In 2015, 58 Rajya Sabha members moved a motion against Justice Pardiwala of Gujarat High Court for his ‘objectionable remarks on the issue of reservation’. It was against a remark made by him on reservations for SC and ST while giving a ruling in a case against Hardik Patel. But, hours after the notice was sent by the MPs to Chairman Ansari, Justice Pardiwala removed the said wordings from his judgment.

CV Nagarjuna Reddy: Despite trying twice to move the motion for removal of Justice Nagarjuna Reddy of the High Court of Andhra Pradesh and Telangana, it finally failed in June 2017. Nine of the 54 Rajya Sabha members who had initiated the proceeding, withdrew their signatures. The first attempt failed in December 2016, as 19 signatories backed out. The allegations against the judge include interfering in the judicial process, caste slurs and death threat against a Dalit junior civil judge.