Vice President Venkaiah Naidu on Monday dismissed a motion to start impeachment proceedings against Chief Justice of India Dipak Misra, which had been moved by the Congress and a number of other Opposition parties last week. The motion had sought to open an inquiry into the conduct of Misra, who has been under fire both from within the Supreme Court as well as outside, on five allegations of “misbehaviour”. On Monday, Naidu concluded that the allegations were simply “unsubstantiated surmises and conjectures” and so dismissed the motion.

Naidu’s move is only the latest in a series of developments that have rocked the Supreme Court all year, beginning with an unprecedented press conference by four senior Supreme Court judges questioning the Chief Justice’s conduct and leading up to the first impeachment motion to ever be moved against a Chief Justice. The situation has seen a number of different battles, both internally within the the court, externally, between the government and the judiciary, and politically, between the Bharatiya Janata Party and the Opposition.

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Accusations

To understand the impeachment effort, its dismissal and what happens next, one first needs to look at the charges themselves. As many as 64 Members of Parliament from 7 different parties signed on to the motion of impeachment that included the following five charges, as described in their release:

  1. The first charge is about allegations in the Medical Bribery scam, in connection to the Prasad Education Trust case, as well as the manner that Misra dealt with the case in the Supreme Court. Here is a full backgrounder on the MCI bribery case, including the allegations that the Chief Justice should not have been sitting in judgment over the matter, since some of his own orders are under question in the case. The Opposition spoke of tapes involving suggestions of bribery and innuendo that could be understood to refer to the Chief Justice, saying this needs to be investigated.
  2. Next, the Opposition brought up the way the Chief Justice dealt with the case at the Supreme Court. It is usual practice that when the Chief Justice is presiding over a Constitution Bench, requests for listing go to the next senior-most judge, which in this case was Justice Chelameshwar, who directed the Prasad Education Trust matter to be listed later in the same day. But a note was later giving to the registrar, that eventually led to the Chief Justice asserting his right as Master of the Roster and the one who would be allowed to decide which bench heard a case.
  3. The third charge was in connection with that note, which the Opposition claims was written only on November 9, but had been dated as November 6, to suggest that it had been prepared before the matter came up in Chelameshwar’s court. “This is the basis of the third charge alleging that the note of 6th November brought to the attention of Justice Chelameswar on 9th November as the matter was taken up was antedated. The charge of antedating is by all accounts a very serious charge.”
  4. “The fourth charge relates the Chief Justice having acquired land when he was an Advocate by giving an affidavit which was found to be false. Further, despite the orders of the ADM cancelling the allotment in 1985, the Chief Justice surrendered the land only in 2012 after he was elevated to the Supreme Court.”
  5. “The fifth charge relates to the abuse of exercise of power by the Chief Justice in choosing to send sensitive matters to particular benches by misusing his authority as Master of the Roster with the likely intent to influence the outcome.”

Dismissal

After the motion was moved before the Vice President a week ago, the Opposition parties held a press conference on Friday – also the day after the decision in the important Loya case had come – and announced that they had moved the impeachment notice. A day later, Naidu decided to cut short a visit and return to Delhi on Sunday in order to carry out consultations on the impeachment motion.

Then, on Monday morning, he delivered his decision. Excerpts from his order are below:

  • On the Medical Bribery scam allegations: “The Hon’ble Members of Parliament who have presented the petition are unsure of their own case... the phrases used by the Hon’ble Members of Parliament themselves indicate a mere suspicion, a conjecture or an assumption. The same certainly does not constitute proof “beyond reasonable doubt.”
  • On the way cases were given to different benches: “Clearly this is an internal matter to be resolved by the Supreme Court itself.”
  • On the overall allegations: “Going through the five allegations mentioned in the Notice, I am of the view that they are neither tenable nor admissible. The allegations emerging from the present case have a serious tendency of undermining the independence of the judiciary which is the basic tenet of the Constitution of India. Considering the totality of facts, I am of the firm opinion that it is neither legal nor desirable or proper to admit the Notice of Motion on any one of these grounds.”
    ...
    “I have applied my mind to each of the five charges as made out in the Motion. I have examined all documents annexed to the motion. I am of the clear opinion that all the facts, as stated in the motion, read with context of the annexed documents, do not make a case out under Article 124 (4) of the Constitution which can lead any reasonable mind to conclude that the Chief Justice of India on these facts can be ever held guilty of “misbehaviour.”
  • “Either the allegations are within the judicial domain and concern the internal judicial processes or there are unsubstantiated surmises and conjectures which hardly merit or necessitate further investigation.”
    ...
    “In the absence of credible and verifiable information placed before me which gives an indication of misbehaviour or incapacity, it would be an inappropriate and irresponsible act to accept statements which have little empirical basis. As heirs to an illustrious tradition and custodians of the present and future of democratic polity, we should, in my view, collectively strengthen and not erode the foundations of the grand edifice bequeathed to us by the Constitution makers. We cannot allow any of our pillars of governance to be weakened by any thought, word, or action.”
  • On the Opposition press conference: “In passing, I am constrained to observe that in this matter, the well established parliamentary customs and conventions... have been disregarded... [The act] of Members of discussing the conduct of the CJI in the press is against propriety and parliamentary decorum as it denigrates the institution of the CJI. I am also aware that there have been a spate of statements in the press that seem to vitiate the atmosphere. I thought I should, therefore, expedite my decision and end the needless speculation.

What next?

The same morning, the Indian Express had published an interview with Kapil Sibal, the Congress leader who has been spearheading the move to impeach Misra. Earlier, the Congress had already indicated that if Naidu dismissed their petition, they would move to appeal his decision in court. In the Express interview, Sibal explained that he believed Naidu did not have the power to decide on the merits of the allegations, only on whether the process had been carried out appropriately.

What if Rajya Sabha chairman rejects it?

He has no jurisdiction. He cannot decide on the merits of the motion. He can only decide on the procedure. So the provision in the Judges (Inquiry) Act for him to either dismiss or admit, relates to only whether 50 members have signed, their signatures are there and motion is in order. He is to refer that matter to the Judges (Inquiry) Committee for decision on the merits. He has no role to play as far as the merits are concerned. He can’t dismiss it. It’s not permissible under the Constitution. He can dismiss it provided 50 members are not there, provided the charges are inconsistent with the provisions of the Constitution. But otherwise he cannot. He cannot say this is not enough. He is not a quasi-judicial authority to decide on the motion. That’s for the Judges (Inquiry) Act.

...

About the legal imponderable… are you saying that you have the option of a legal recourse because it doesn’t fall in the privileges of the House rules?

According to me, it would be a breach of privilege (if the chairman rejects it) because we have a privilege to move the motion under the Constitution. That’s a serious issue again. That is something we will have to consider. But why should I speculate? I’m telling you my understanding and interpretation of the law. I also may be wrong. Nobody is infallible.

Because there were suggestions that if it is rejected, people can go to Supreme Court?

When the situation arises, there will always be ways of dealing with it. Because there is no decision without a remedy. Every decision has a remedy.

Based at least on Sibal’s words, it seems likely that the Congress will indeed consider taking the matter to the Supreme Court to review Naidu’s decision. This could lead to even more unusual situations: Will the Chief Justice as Master of the Roster sit in judgment over an appeal against Naidu’s decision to dismiss a petition seeking to impeach him?