Two and a half months after four senior judges of the Supreme Court raised concerns about his administration of the Supreme Court of India, reports are emerging that an impeachment motion will be moved against the Chief Justice of India, Dipak Misra. A source close to the Congress party informed The Quint that the motion may be moved in the coming days.
The impeachment motion will reportedly be moved by a combination of several opposition parties in the Rajya Sabha, though some reports have suggested that the Congress circulated the proposal which is now being taken forward.
Back in January, the Congress had declined to say whether or not they would move to impeach the CJI, though CPI(M)’s Sitaram Yechury had suggested doing so. The Economic Times reported earlier on Tuesday that leaders of the Congress, TMC, NCP, CPI(M) and others had discussed the matter last week, “as they felt the CJI had failed to address the key issues raised by the four senior-most judges”.
If the motion is successfully moved, CJI Misra will be the first Chief Justice of India and only the second Supreme Court judge, against whom impeachment proceedings have been initiated. No judge of the Supreme Court or High Courts has ever been removed from office.
Why Impeachment?
The four senior judges who held the press conference on 12 January had raised a number of concerns relating to the functioning of the Supreme Court, primary among which was the assignment of cases to inappropriate benches by CJI Misra (and previous CJIs). One such controversial assignment was of the Judge Loya case to a bench headed by Justice Arun Mishra, as confirmed by Justice Gogoi at the press conference.
The letter released by the judges at the Supreme Court also raised concerns over decisions which took stances contrary to what they viewed as established precedent, such as a decision of Justices Lalit and Goel that seemed to indicate that there was no Memorandum of Procedure for appointment of Supreme Court judges in place at present.
It is not clear if these issues are behind the impeachment proposal currently being circulated, though the CJI’s failure to address these issues was reportedly discussed by the opposition parties last week. The CJI did release a new roster for assignment of cases after the press conference, but this created more controversy than solutions as it assigned all PILs to his own court, and none of the major constitutional matters before the court were listed before any of the four senior judges: Justices Chelameswar, Gogoi, Kurian Joseph and Lokur.
Bar & Bench are reporting that the first issue on the draft is the Prasad Education Trust case, one of the medical bribery cases which rocked the higher judiciary last year. The CJI was on the bench which initially heard the Prasad Education Trust cases in the Supreme Court – the CBI was subsequently looking into allegations that retired Orissa High Court judge IM Quddusi had agreed to help the Trust get favourable orders in the case in the Allahabad High Court and the Supreme Court.
Two petitions had been raised in the Supreme Court asking for a court-monitored investigation into these allegations. CJI Misra overturned a referral of the cases by Justice Chelameshwar and assigned them to a bench headed by Justice Arun Mishra, which dismissed both of them.
The Committee for Judicial Accountability and Reforms had submitted a complaint to the five senior-most judges of the apex court after the CJI, which referenced these allegations.
What Is the Procedure to Be Followed for Impeachment?
The process of impeachment is described in Article 124(4) of the Constitution and the Judges (Inquiry) Act 1968. A judge can be removed on the grounds of “proved misbehavior or incapacity”. Neither misbehaviour nor incapacity are defined, but would include any criminal activity or other judicial impropriety.
The steps are as follows:
- An impeachment motion against the judge needs to be raised in either of the Houses of Parliament. The motion can only be admitted by the Speaker in the Lok Sabha or Chairperson (by default, the Vice-President) in Rajya Sabha if it has the required levels of support: 100 MPs in Lok Sabha or 50 MPs in Rajya Sabha. 50 opposition MPs in the Rajya Sabha have already reportedly signed the motion to impeach CJI Misra.
- If the motion is admitted, a three-member committee is set up to investigate the allegations. The committee is to be made up of a Supreme Court judge, the Chief Justice of any High Court, and a ‘distinguished jurist’ (read: judge/lawyer/scholar) nominated by the Speaker/Vice-President.
- Once the committee prepares its report, this has to be submitted to the Speaker/Vice-President, who then also shares it with the other House.
- Both Houses of Parliament then need to pass an ‘address to the President’ asking for the judge to be removed. To succeed, this needs to be passed by a 2/3rds majority of the MPs present in each House during the vote, and must also exceed the 50 percent mark in each House.
- If both addresses succeed, then the President can remove the judge from his position by Presidential Order.
The only time the process has got as far as the final step was in the case of Justice V Ramaswami of the Supreme Court. In 1993, the final vote failed to get a 2/3rds majority in the Lok Sabha.
It is unclear if the impeachment proceedings would succeed against Justice Misra – the investigation itself is unlikely to be completed by the time he is supposed to retire in October 2018.
However, if the process is initiated during this time, this could affect CJI Misra’s actions during the remainder of his tenure – there is considerable debate over whether or not he would need to recuse himself, or at least take no decisions relating to the significant issues before the Court such as the Babri Masjid case, the Aadhaar matter, or the review of the Supreme Court’s decision on Section 377 of the IPC.
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