Congress' attempt to oust CJI Dipak Misra is no coincidence; move has clear link to judge Loya case

The Congress and some of its allied parties in the Opposition have on Friday initiated an impeachment motion against Chief Justice of India Dipak Misra. This has come within 24 hours of the verdict in the judge Loya case, in which a three-judge bench headed by CJI Misra dismissed pleas seeking a probe into the judge's death, and also severely criticised the petitioners. The Congress wants people to think that this is a mere coincidence.

Assuming that this was indeed a coincidence, let us consider other "coincidences" leading up to the Congress' campaign for the impeachment of the CJI and its act of gathering signatures of 64 Rajya Sabha MPs and presenting them before the Chairman of the Upper House.

Senior Congress leader and Rajya Sabha MP Kapil Sibal has appeared as the counsel of the Sunni Waqf Board in the Ram Janmabhoomi-Babri Masjid case before a bench headed by CJI Misra. Sibal had demanded that the case be heard by a five-judge bench or a seven-judge bench, but not the current one. On 5 December 2017, this demand was rejected by the court. Sibal had then said, "I do believe that any decision in this case will have very serious ramifications and the appeals should be referred to a five or seven judge constitution bench. Do not say 'no, no, no'. Please hear the matter keeping in mind the ramifications...please fix the matter in July 2019 and we assure that we will not seek any adjournments... justice should not only be done, it should be seen to be done."

Dushyant Dave, another senior advocate representing one of the parties, questioned the "hurry" in hearing the appeals, and pointed out that the issue of the Ram Temple was a part of the BJP manifesto. The bench headed by CJI Misra rejected this contention and fixed the next date of hearing in the case.

Opposition leaders at a press conference on Friday. PTI

Opposition leaders at a press conference on Friday. PTI

In effect, Sibal and Dave were making a political argument before the apex court, asking the judges to refrain from hearing the case before the Lok Sabha election.

It is an interesting coincidence that Sibal led the Congress' efforts in initiating an impeachment motion against Chief Justice Misra. Sibal has also been the party's most outspoken leader on the judge Loya case. He had even interrupted Rahul Gandhi while the Congress president was briefing the media after petitioning President Ram Nath Kovind. The party approached the President even as the issue was pending before the Supreme Court.

Dushyant Dave, who had questioned the “hurry” of the court in deciding the Ayodhya dispute, was the counsel for the petitioner in the judge Loya case. In the latter case, he often had heated exchanges with the bench.

The following 'coincidence' is the most interesting one. On 15 January, four senior-most judges of the Supreme Court after the CJI — Justices J Chelameswar, Ranjan Gogoi, Madan B Lokur and Kurian Joseph — addressed a press conference on a working day.  They took on the Chief Justice and questioned the allocation of the judge Loya case to a "junior" judge Justice Arun Mishra.

At the press conference, Justice Chelameswar was asked, "According to you, what are the remedies now? Do you want the Chief Justice to be impeached?" He responded by saying, “We are not saying anything, let the nation decide”. On the same afternoon, Justice Chelameswar had met Communist Party of India leader and Rajya Sabha MP D Raja. The political clamour for the Chief Justice’s impeachment started afterwards.

Now, consider the constitutional provisions for the impeachment of a judge of the High Courts or the Supreme Court. If one goes beyond the headline-generating potential of the issue, it is a question worth asking as to whether the Congress' attempt to initiate an impeachment motion has even the remotest chance of succeeding.

Impeachment proceedings have never been initiated against the Chief Justice of the Supreme Court. Also, no Supreme Court judge has even been impeached.

Article 124 (4) of the Constitution says “Judge of the Supreme Court shall not be removed from his office except by an order of the President passed after an address by each House of Parliament supported by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present and voting has been presented to the President in the same session for such removal on the ground of proved misbehavior or incapacity.”

The provision related to “proven misbehaviour or incapacity” is the most important part of the procedure for impeachment. There is no other ground on the basis of which impeachment proceedings can be taken up by either House of Parliament. The question is whether the case of Chief Justice Misra can be said to be one of "proven misbehaviour or incapacity." Perhaps the Congress is trying to convey a message, something on the lines of what US President George Bush had famously said, “Either you are with us or with the enemy."

The Congress chose to file a petition before the Rajya Sabha Chairman and not in the Lok Sabha, because in the Lower House, the Congress along with all its allies have less then 100 MPs between them. In Rajya Sabha too, its numbers are dwindling with each biennial election. However, the party still managed to secure the signatures of 64 sitting members. In any case, it does not have the numbers (two-thirds of the members of the House) to get the motion passed in the Upper House. In the Lok Sabha as well, the Congress and its allies constitute a small minority.

The Congress' attempt may fail at two levels. Firstly, the petition may fail to convince the Chairman of the Upper House M Venkaiah Naidu, who may simply reject the motion. If the Chairman does admit it, the allegations have to pass the scrutiny of a three-member committee, comprising of a senior judge of the Supreme Court, a Chief Justice of a High Court and a distinguished jurist.

Finance Minister Arun Jaitley is right when he says, "It is a revenge petition after the falsehood of the Congress Party has been established in the Justice Loya death case. It is an attempt to intimidate a judge and send a message to other judges, that if you don’t agree with us, fifty MPs are enough for revenge action."

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Updated Date: Apr 20, 2018 20:42:50 IST

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