In what is being construed in political circles as an ill-advised proposal, the Congress by moving a motion to remove Dipak Misra, Chief Justice of India, has exposed differences within its own ranks. The pronounced factionalism which has been highlighted on the eve of the Karnataka Assembly elections is evident from the fact that former Prime Minister Manmohan Singh and at least two erstwhile Law Ministers, M. Veerappa Moily and Salman Khurshid have expressed their serious reservations about going ahead with the exercise. Former Finance Minister P. Chidambaram has not signed the petition either and Congress sources insisted that this was so because his son was facing charges in the INX case and thus he was kept out. Similarly, key party functionary, Digvijaya Singh has his concerns and has consequently chosen to maintain absolute silence on the matter.
A senior Congress leader said on the condition of anonymity that the timing of the declaration to proceed against Dipak Misra was inapt since in public perception it would get linked to the Supreme Court’s dismissal of the Justice Loya case. In addition, the Bharatiya Janata Party, so as to derive political mileage, is bound to project the Congress measure of displacement of the CJI as its attempt to delay the judicial process regarding the settling of the Ramjanmabhumi-Babri Masjid dispute.
Senior leader Kapil Sibal, a strong votary for action against Justice Misra, has over the past few days been at pains to explain that there were no differences and dissensions within the Congress. Several Opposition parties had also supported the motion and were signatories to the petition. Therefore to conclude, that all leaders were not on the same page on the issue, was both premature and misleading.
However, Salman Khurshid clearly stated that “impeachment is too serious a matter to be played with frivolously on the grounds of disagreement with any judgement of the Court”. He hastened to add that he had not been a part of any discussions held on this matter and was necessarily not aware of various viewpoints. Thus it would be unfitting for him to make any further comments.
Sources in the Congress said that the CJI’s removal issue should have been appropriately dealt with during the budget session itself. If this did not take place, it was solely because of the division within the party. At that stage, Sibal’s was the lone voice which was for the impeachment motion, and there had to be a solid rationale for him to feel so strongly about it. Sources said that it would be incorrect to formulate the idea that Sibal nursed a personal grudge against the CJI, and therefore was exhibiting over-keenness in the matter. Some other legal luminaries, who were party MPs, were unconvinced of such a move serving any purpose, save affecting the power and pelf of the judiciary. To begin with, Abhishek Singhvi was reluctant to be a party to the motion, but finally signed the petition after being prompted by the high command.
There are sufficient grounds on which action against Misra can be initiated. The Congress and its allies have listed five specific charges that do not include Justice Loya case as the reason justifying the motion. The five charges make no mention of the ongoing Ayodhya dispute, though the BJP openly has alleged that this was the specific unstated purpose of attacking the CJI. Finance Minister Arun Jaitley has described the proposal as a “revenge petition” post the dismissal of the Loya case.
In judicial circles, there is also resonant concern that the action against the CJI was being politicised beyond a degree, threatening the institution of an independent judiciary. The Congress has all along been maintaining that it was a right granted to Parliament members to initiate proceedings against judges who face accusations. Sibal said, “As representatives of the people, we are entitled to hold the CJI accountable, just as we are accountable to the people. The majesty of law is more important than the majesty of any office.”
The Congress is of the opinion that after four senior-most judges of the Apex Court publicly expressed their displeasure and disgruntlement over the functioning of the CJI, there were sufficient reasons to perceive that all was not well in the highest echelons of the judiciary. Therefore, it was important to ascertain whether the CJI was abusing his powers as the “master of the roster” to allot matters to particular benches with “the likely intent of influencing the outcome”.
Misra’s role in antedating an administrative order to ensure mentioning can be made only in the CJI’s court was also under scrutiny as was also an old allegation of surrendering a piece of land, whose allotment was cancelled in 1985, only in 2012 after his elevation to the Apex Court. There is also another charge of conspiracy at play to pay illegal gratification by persons in relation to the Prasad Education Trust case and the manner in which it was dealt with by the CJI. Yet another grave accusation is about the denial by the CJI to the CBI to register a case against Justice Narayan Shukla of the Allahabad High Court, even though there was incriminating evidence against him. A thorough investigation is required on this front.
However, the impeachment or the removal process has to follow certain procedures stipulated under the Constitution and the Judges Inquiry Act of 1968. It first and foremost requires that the presiding officer, the Rajya Sabha Chairman in this instance admits the motion and constitutes a three-member investigation team comprising a Supreme Court judge, a chief justice of a High Court and a distinguished jurist. The Chairman can reject it if he finds the grounds flimsy, yet may allow the procedure to be completed. The inquiry committee will frame charges and provide an opportunity to the judge to cross- examine witnesses. Subsequently, the committee will submit its report to the Chairman and accordingly further action on its recommendations would be taken.
It is true that the Congress and the Opposition do not have the numbers to win the removal motion, but if the charges are established by the inquiry committee, the continuation of the CJI in office would become untenable. This is the best bet for the Congress and those who have signed the petition.
In the past, there have been three undertakings to remove judges via the Parliament route. P.D. Dinakaran of the Sikkim High Court was in the eye of a storm and would have been “impeached” had he not resigned. Justice V. Ramaswami, who was by Sibal vociferously defended during the landmark proceedings, escaped the axe, after sufficient votes that would have ensured his removal following the debate were not cast. However, the brunt was borne by Soumitra Sen, of the Calcutta High Court who was targeted by the Upper House, and thus had his name smeared for alleged malpractices.