Have you ever seen a film producer or crew promote a film by declaring that they had copied a past film that bombed miserably at the box-office? You didn’t; because nobody would publicly say anything like that.

The Chairman of the Rajya Sabha and our Vice-President, Venkaiah Naidu, hurriedly issued an order on 23 April to reject the motion for the removal of CJI Dipak Misra. The motion had been placed before him by more than the requisite number of Rajya Sabha members only three days earlier.

The Chairman repeatedly said in his order that he had consulted several legal experts and constitutional scholars, and that they were almost unanimous in asking him to reject the motion.

The problem, however, is that the legal experts and constitutional scholars in question did not do their homework well enough; they relied upon a dissenting judgment of the Supreme Court, and, in turn, asked the Rajya Sabha Chairman to reproduce it as the basis for his rejection order.

Have you ever seen a film producer or crew promote a film by openly declaring that they had copied a film that bombed miserably at the box-office? You didn’t; because nobody would publicly say anything like that.

There’s an equivalent of that in the legal profession. No judge or decision-maker would lift portions out of a court’s dissenting judgment and cite them as the basis of their order. However, the unthinkable has just happened in the order issued by Chairman Naidu.

Paragraph 5 of the Chairman’s rejection order said he was guided by the judgment of the Supreme Court in Krishna Swami v. Union of India [AIR 1993 SC 1407 : 1992 (4) SCC 605], reproducing a part of the dissenting judgment while not even being aware of the dissent.

A judgment is an authority for the court that delivered it. It becomes law for that court and institutions that are bound to it. When several judges sit down to hear your case but do not mutually agree on the solution, the matter is decided by the judgment of the majority of the judges. The other judgment, by judges who disagreed with the majority, is known as a ‘dissenting judgment’. A dissenting judgment in your case does not have any bearing on the outcome, and is not the law for the court that delivered it. It binds none, either. It is seen as a view that is incorrect, undesirable or plain wrong when somebody proposes a legal argument or a judgment on its basis.

The Krishna Swami judgment involved five judges of the Supreme Court. Four of them (Justices J.S. Verma, N.M. Kasliwal, K. Jayachandra Reddy and S.C. Agrawal) took one view, while the remaining one (Justice K. Ramaswamy) held a diametrically opposite opinion. It is this dissent that has guided our Chairman.

The Krishna Swami judgment looked into the impeachment process for the then Supreme Court judge, V. Ramaswami. The Speaker of the Lok Sabha had already admitted a motion seeking his impeachment signed by 108 MPs. After some time, doubts were raised about the validity of the Speaker admitting that motion. And, thanks to those doubts, it barely made any progress.

Subsequently, a five-judge bench of the Supreme Court explicitly held that the motion was valid and issued certain directions to the central government to take it forward [sub-committee on judicial accountability v. union of India 1991 (4) SCC 699]. Thereafter, a committee was constituted to examine the allegations levelled in the motion. After some time, the committee concluded its investigation.

Two outside individuals approached the Supreme Court in the case. One was Krishna Swami, a Member of Parliament; the other was an advocate by the name of Raj Kanwar. Both of them had sought relief in favour of Justice V. Ramaswami, and their principal plea was the quashing of the impeachment motion. Four of five judges dismissed both petitions. However, Justice K. Ramaswamy issued novel propositions of law to curtail the scope of deliberation of the Speaker to admit a motion and the scope of work of the inquiry committee.

On the basis of the law declared in his dissent, Justice K. Ramaswamy directed the inquiry committee to even ignore material that could prove the charge against the judge if the Speaker did not initially send such material. Of course, what was said by Justice K. Ramaswamy was of no consequence in law, until now.

The Rajya Sabha Chairman has reproduced explicitly, in paragraph 5 of his order, the observation made by Justice K. Ramaswamy in his judgment.

The four other judges had expressly stated that they disagreed with Justice K. Ramaswamy.

Draw from a dissenting judgment renders the Chairman’s order vitiated. The order would have looked very different if not for the guidance drawn from that dissenting judgment; it is the basis of his order.

I find it very difficult to imagine that matters of such great significance were so casually dealt with by the Chairman. When the Chairman says there is near unanimity among legal scholars that the motion be dismissed, concern must be expressed about why he did not encounter any legal scholar with a different view. One wonders what would have happened had Naidu come across more views.

In short, the Chairman didn’t do his homework and his legal scholars didn’t do theirs, either. It’s a travesty that the Chairman is less worried about what is becoming of his own office than about judicial independence. It is difficult to imagine a motion to Parliament with the requisite number of signatures somehow becoming a threat to judicial independence, which was the crux of the Chairman’s rejection order as well as the basis of that dissenting judgment.

Our founding fathers didn’t seem to labour under any such anxiety, however.

At any rate, worries over the judiciary losing its independence should not have forced the Chairman of the Rajya Sabha to lose sight of where dissent begins and ends in a judgment cited to him. Whoever his legal scholars are, will they please speak up and explain this mess around the rejection of the motion resting on a dissenting judgment of the Supreme Court?

K.V. Dhananjai is a Supreme Court advocate

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