Legislature vs judiciary: Decision to move impeachment motion against CJI Dipak Misra could fail resoundingly

It is an intriguing equation for the purist. Who has the final word? The judiciary or the legislature, when it comes to contempt of court. Both institutions have the power to summon the public for contempt proceedings but is the first blocked by the supremacy of the Constitution from throwing the book at an errant member of the legislature?

To a great extent the answer seems to be a yes in that a member of parliament is protected by the laws of procedure 1957 that gives ample protection to elected representatives, none of which harbours are afforded to the public they serve. This is ironic. The armour they have would put a Kevlar vest to shame.

According to the Constitution, members have three basic privileges. The freedom of speech codicil that allows for almost blanket utterances that are protected. It gives them freedom from arrest and it allows them exemption from duty as jurors or witnesses. Between these three privileges they are pretty much above common law.

File image of senior Opposition leaders - (from left to right) Ghulam Nabi Azad, Kapil Sibal with D Raja - at a press conference on Friday. PTI

File image of senior Opposition leaders - (from left to right) Ghulam Nabi Azad, Kapil Sibal with D Raja - at a press conference on Friday. PTI

Former Secretary General of the Lok Sabha PDT Acharya has been quoted as saying, "Whatever happens in the Lok Sabha is not subject to judicial review. The House has immunity… Nobody can challenge in court proceedings of the House on the grounds that there are procedural irregularities." Another former Secretary General Bal Shekhar concurs.

When discussing the texture of a money bill and what its parameters are, he said, "The House can devise its own rules of procedure. [The] Speaker is the custodian of all rules of procedure and he/she is the final interpreter of the rules. Whatever may be the ruling, it cannot be looked into by a court of law. There have been specific provisions… that courts will not go into procedural issues, whether it is passing of a bill or any resolution or motion."

Is it no wonder then that a rag, tag and bobtail outfit from the Opposition can mess about playing 'party' games and trivialising the act of impeachment of the Chief Justice of India. That CJI Dipak Misra has maintained a dignified silence through these shenanigans is edifying but inside he must be seething at the impropriety of it all.

It is cold comfort that the move to impeach will fail resoundingly for having neither basis or numbers but it will go on record as a motion that occurred and this is bad enough. The question now is whether the rules should be changed and the protections sufficiently lifted when it comes to the judiciary versus the legislature. To paraphrase the official introduction to the office of the Speaker; “The office of the Speaker occupies a pivotal position in our parliamentary democracy. It has been said of the office of the Speaker that while the members of Parliament represent the individual constituencies, the Speaker represents the full authority of the House itself. He symbolises the dignity and power of the House over which he is presiding. “

Such is the protection for this office, allowed only to be questioned by the judiciary only in cases of defections.

In India contempt of court is of two types:

1. Civil contempt: Under Section 2(b) of the Contempt of Courts Act of 1971, civil contempt has been defined as wilful disobedience to any judgment, decree, direction, order, writ or other process of a court or wilful breach of an undertaking given to a court.

2. Criminal contempt: Under Section 2(c) of the Contempt of Courts Act of 1971, criminal contempt has been defined as the publication (whether by words, spoken or written, or by signs, or by visible representation, or otherwise) of any matter or the doing of any other act whatsoever which:
i. Scandalises or tends to scandalise, or lowers or tends to lower the authority of, any court, or
ii. Prejudices, or interferes or tends to interfere with the due course of any judicial proceeding, or
iii. Interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner.

The punishment for this is 6 (six) months, or fine up to Rs 2,000 or both.

Any of us 1.2 billion Indians would read Section II and its clauses as sufficient grounds for taking legal action against Rahul Gandhi and those who have supported the impeachment without any grounds for it, even though they must realise they have shown enough prejudice, lowered the authority of the Supreme Court (and created irrevocable damage) interfered with proceedings, and created a scandal.

And yet, they can get away with embarrassing the nation. Something is not right.

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Updated Date: Apr 23, 2018 09:40:55 IST

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