ThePrint analyses the various scenarios in the aftermath of the historic move to initiate an impeachment motion against the Chief Justice of India.
New Delhi: The Congress-led opposition’s move to impeach Chief Justice of India Dipak Misra is not likely to actually achieve the purpose of removing him from his post. But it will, in all likelihood, achieve a symbolic victory.
While the opposition simply doesn’t have the numbers and the CJI has the government firmly in his corner, there are many, both within and outside the judicial system, who feel CJI Misra’s position has become untenable.
Now that after months of dilly-dallying, the opposition has finally gone ahead and submitted the motion to Vice-President M. Venkaiah Naidu, who is also Chairman of the Rajya Sabha, here are answers to some possible issues and questions that will arise in the near future.
Will the motion succeed? Not likely. For, unless the BJP comes on board and supports the motion — the chances of that happening seem bleak as of now, the motion can’t be passed by the required majority so as to ensure the removal from office of Misra. An impeachment motion against a judge of the Supreme Court or any high court has to be passed by both Houses of Parliament by a majority of two-thirds of the members present and voting, with at least half the strength of each House participating in the vote.
As of today, the parties that are signatories to the motion and others like National Conference that don’t have any MP in the Rajya Sabha but will vote for the motion in the Lok Sabha, are nowhere near even the simple majority mark, forget a two-thirds majority.
How are the numbers stacked now? As for today, those who could vote for the motion like Congress, NCP, etc, have 77 MPs in Lok Sabha, which has 540 MPs currently, and 79 in Rajya Sabha, which has a voting strength of 244. Two-thirds in each house means 360 in Lok Sabha and 163 in the House of Elders. The numbers are clearly tilted towards the motion being defeated.
Will it really come to voting? The possibility of this happening also looks bleak since the Rajya Sabha Chairman, who has the discretion to accept or reject the motion for impeachment, may decide not to admit it. The Congress leadership seems to think that this is the likely course and hence is ready with Plan-B: to challenge the Chairman’s decision in court. However, with CJI Misra scheduled to retire on October 1, any decision to allow the motion may come a bit late for the actual voting to happen.
Who will hear the case? Since the case would pertain to the sitting CJI, any possible writ against the order of the Chairman to reject the motion can’t be heard by a bench of which the CJI himself is a part. Ideally, the matter would then go to another bench to be headed by the second senior-most judge – Jasti Chelameswar. But, here is where the problem lies: Justice Chelameswar was one of the four top judges of the apex court to come out and hold a press conference against the conduct of CJI Misra.
Therefore, the possibility of him hearing the case is also bleak. Ditto for the next three in order of seniority — Justices Ranjan Gogoi, Kurain Joseph and Madan Lokur, who were also present at the presser. Moreover, since the matter involves the CJI, who is the master of the roster, who would, in his absence, take a call on which bench will hear the plea?
Will CJI Misra continue judicial work after the motion? Ideally, with the opposition taking the unprecedented step of moving an impeachment motion against him, his position has now become untenable. The best course, many feel, is for him to proceed on leave or at least stop dealing with judicial work now that there is a serious question mark over is working. But, he is not likely to be so pliable and give in so easily. In the past, whenever high court judges have faced impeachment, in most cases, their work was withdrawn and they were made to sit idle awaiting the outcome of the impeachment motion. But, with the BJP-led government clearly supporting CJI Misra, he may actually be advised against proceeding on leave or not holding court.
Who will be members of the probe committee? If, and it is a big if, the motion is accepted, the RS Chairman has to constitute a committee to probe the charges against the CJI. As per the Judges (Inquiry) Act, 1968, in case of judges, the committee consists of a Supreme Court judge, a high court chief justice and a distinguished jurist. While there are some who feel that since this is the first time that such a motion has been moved against the CJI, there is no clarity as to who will be members of the panel to probe the charges against the CJI, the position is erroneous. For Section 2 (C) of the Judges (Inquiry) Act, 1968 also defines judge as “a Judge of the Supreme Court or of a High Court and includes the Chief Justice of India and the Chief Justice of a High Court”
Will impeachment have any impact on who the next CJI will be? Yes. In case, CJI Misra is actually impeached before 23 June, the possibility of which happening hovers between bleak to impossible, he will be replaced by Justice Chelameswar. However, in case, the impeachment happens after 23 June, Justice Ranjan Gogoi, who is otherwise also next in line to succeed CJI Misra, will become CJI, though for a longer tenure.
The Speaker did not allow a motion of no confidence against the government to be taken up for discussion in the Lok Sabha, although the legal requirements / formalities had been complied with. A very helpful precedent has been created for future use by a government that has lost its majority. It would be unfortunate if the Presiding Officer of the Rajya Sabha follows a similar path and rejects the motion for impeachment of the CJI. It follows constitutional requirements and lists allegations / charges that cannot be summarily rejected. At the very least, they have the moral force of the public statements of the four seniormost judges of the apex court. 2. For the apex court to uphold the Vice President’s decision would be widely – if not necessarily correctly – viewed by the public to be an act of shielding someone who should be most anxious to face an enquiry to clear his fair name. 3. The most unfortunate aspect of the process that has now been initiated – which is why one had fervently hoped things would not reach this stage – is that the fate of the head of the judiciary will now be decided by politicians acting as per their own partisan calculations, not the merits of the case. When spokespersons of the two national parties appear on a TV debate, one can predict what views they will express. For all Indians who understand instinctively how important the independence of the judiciary is for the health of our nation, this was a denouement to have been avoided at all costs. A notice period of three months has been wasted.
From where you got the impression that in Lok Sabha NDA Govt has lost its majority? Even BJP alone has still the simple majority in Lok Sabha.