How should one view the impeachment move against the Chief Justice Dipak Misra that the Congress has initiated but the Vice President Venkaiah Naidu aborted for the time being. At the time of writing, some section of the Congress party is threatening to take the matter to the Supreme Court to overrule the objection of the Vice President, who as the chairperson of the Rajya Sabha dismissed the petition of the 64 members of the House to remove Justice Misra under Article 124(4) of the Constitution of India. I am using the word ”section” deliberately, because it is a strange move in the sense some senior Congress members of the Rajya Sabha, including former Prime Minister Manmohan Singh and former finance minister P Chidambaram, have not signed the petition. Similarly, veteran lawyer Ram Jethmalani, who is a Rajya Sabha member of Lalu Yadav’s Rastriya Janata Dal, is vehemently opposed to the impeachment move, although his party is supporting it officially.
However, it is abundantly clear that the impeachment move against the Chief Justice is strongly driven by the Congress President Rahul Gandhi. And that is what ultimately matters in the Congress party. Whether the Supreme Court will declare the Vice President’s decision null and void and ask him to constitute a committee, of which a Supreme Court justice will be a member, to decide the merits of the petition. If this committee finds merits then there will be debates by the members of the two Houses, each of which has to agree with two-third of the members present and voting for any successful impeachment. Incidentally, no judge, whether of the any High Court or the Supreme Court, let alone the Chief Justice of the country, is yet to be impeached by Indian Parliament. Viewed thus, the Congress wants to make a judicial history in the country.
The Congress cites five grounds for Justice Misra’s impeachment. One, there is prima facie evidence that the Chief Justice “may have been involved” in gratification case relating to an education trust. Second, his judicial conduct in some cases is “likely to fall” within “the scope of investigation “for administrative impropriety. Third, Justice Misra appears to have antedated” an administrative order that amounts to a forgery/fabrication. Four, before becoming a judge, Justice Misra had acquired land by giving false affidavit (he had taken it on a temporary lease and had surrendered it accordingly). Five, as the master of roster, the Chief Justice is assigning cases selectively to his favourite judges to achieve a predetermined outcome.
Vice President Naidu has made it public that he was not satisfied with the seriousness of any one of these charges. He has correctly highlighted how Article 124(4) clearly states that any impeachment motion for consideration must talk of “proved misbehaviour” by or “incapacity” of the judge in question. And here “the proved misbehaviour “is clearly distinguishable from “misconducts” that are of “lighter gravity and onus”. In the case of Justice Misra, few will find problems with the Vice President’s decision that the impeachment motion when he says that the honourable MPs are not sure of what they are charging against the Chief Justice and their charges do not constitute proofs “beyond reasonable doubt”. That is why they are using the terms “may have been” and “likely”. Secondly, the Vice President has quoted important judicial verdicts that unambiguously make it clear that the Chief Justice is the master roster. Though Naidu does not say so, the so-called corruption charges against Justice Misra for his land-lease were never the issue at the time of becoming a High Court Judge, Chief Justice of the High Court and Justice of the Supreme Court. And all these positions he achieved under various Congress governments. So, what is the Congress talking?
The Congress and its “chamchas”, who dominate the social media these days say that the Chairperson has no authority to dismiss a petition; his only job is ascertain whether the petition had at least 50 signatures of the MPs, the number requited for initiating an impeachment move against a High court or Supreme Court judge in the Rajya Sabha.
However, nothing can be more perverse than this logic. The Vice President or the chairperson of the Rajya Sabha is not a post master to just forward the matter after counting that 50 signatures have been there. Here the Article 124(4) has to be read along with the Article 217 of the Constitution of India. Besides, the Vice President has quoted important judicial pronouncements that say that before admitting impeachment motion, the presiding officer of the House where it is introduced may seek legal opinions for advice from various sources such legal luminaries and constitutional experts. And this he did before dismissing the Congress petition.
Some Congress supporters argue that when in 1990 there was impeachment in the Lok Sabha move against Justice Ramaswamy, the then Speaker Rabi Ray admitted the first ever impeachment motion moved by BJP and left parties against Justice Ramaswamy on the last day of ninth Lok Sabha Congress was not happy about it. Rabi Ray did not go into the merits of the allegations. He left it to the three member Judges Enquiry Committee established by him under the Judges Enquiry Act to go into those allegations. Congress went to the Supreme Court challenging the validity of the impeachment motion on the ground that it lapsed with the dissolution of the ninth Lok Sabha. But the Supreme Court upheld the impeachment motion and ruled that such motions did not lapse with the dissolution of the Lok Sabha. Then the three judges Committee established by Speaker Ray went into the allegations against Justice Ramaswamy and held them to be valid for discussions and voting in the Lok Sabha. The point, thus made is that Rabi Ray has established the precedence for the posterity, which Vice President Naidu has broken.
This again is a spurious logic. Can these Congress supporters prove that Ray just acted like a post master? Did Rabi Ray say to that effect anywhere? On the other hand, one can argue that Rabi Ray saw merits and admitted the motion. Similarly, Naidu did not see any merit and accordingly dismissed the move. The Presiding officer has been given that constitutional power. Period. Everything else is interpretation. As has been pointed above, if it is simply a matter of counting the number, then any clerk of the Parliament will admit or reject the motion and presiding officers will not be consulting the legal luminaries before making up their mind. In fact, none other than Kapil Sibal had said the same thing in 2010 in an interview to the NDTV (the video is a huge hit now in the social media). at that time he was senior minister of the Congress-led regime at the Centre.
There is another underplayed point at this sordid point. Assuming that the petition will go for parliamentary vote, will the Congress, given its negligible legislative strength (even if one adds that of the Samajwadi Party, Communists and the Bahujan Samaj Party), succeed in impeaching the Chief Justice? Not at all. So what is the real motive behind the Congress plan?
As I had written once in this column, it is just not incidental that Rahul Gandhi’s anguish has followed the Chief Justice Misra deciding to open up the files of 1984 Sikh riots and not listening to Kapil Sibal to defer the case of the Ramjanmabhoomi at Ayodhya.
Let us also not forget the facts that the late Indira Gandhi had favoured the idea of “a committed judiciary” and that it was a Congress government that had begun the practice of supersession of difficult judges and rewards to pliant judges. In fact, the Congress holds the notorious distinction of appointing Congress MLA-turned MP first as the Justice of a High Court and then the Supreme Court. He was Justice Baharul Islam. One is not talking here of the post retirement appointments that the then ruling Congress gave to many judges, including Chief Justice Ranganath Misra, who, incidentally, happened to be present Chief Justice Dipak Misra’s paternal uncle. The Congress has damaged the judiciary, one vital pillar of our vibrant democracy, badly in the past and is doing that again now to convert it to a political battle against Modi.
As a veteran diplomat rightly says, “This seems to be part of a larger conspiracy to destabilise the government. First came the social media aggression just before Gujarat elections and propping up of Hardik, Jignesh, and Alpesh in Gujarat. Then came the mayhem in Maharashtra with Mewani and (Umar) Khalid being present. In fact, 2018 and 2019 will not be peaceful years; every effort will be made to show government in bad light and create mayhem before 2019 elections.”
In fact, I will end with quoting something I noticed in the social media. To me it makes a lot of sense when it says:
They don’t trust CJI
They don’t trust SC
They don’t trust EC
They don’t trust EVMs
They don’t trust RBI
They don’t trust PMO
They don’t trust World Bank
They don’t trust IMF
They don’t trust NIA
They don’t trust CBI
They don’t trust Indian Army
They don’t trust GDP numbers
They don’t trust President of India
In other words, what Rahul Gandhi and his Congress will like to make us believe is that every institution is degenerated just because Modi is in power; they all were rejuvenated when the Congress was in power. What a joke!
By Prakash Nanda