On Monday, two Congress MPs approached the Supreme Court, challenging the decision of Rajya Sabha Chairperson Venkaiah Naidu to reject the notice of motion for removal of Chief Justice of India Dipak Misra. They have filed a writ petition asking for the Court to:
- quash the order passed by Naidu for being arbitrary and going beyond the scope of his authority;
- direct Naidu to admit the notice of motion for removal of CJI Misra; and
- direct Naidu to refer the matter to an Inquiry Committee in accordance with section 3(2) of the Judges (Inquiry) Act 1968 (the Inquiry Act).
MPs Partap Singh Bajwa and Dr Amee Yajnik, represented by Kapil Sibal and Prashant Bhushan, approached the court of Justices Jasti Chelameswar and Sanjay Kishan Kaul to ask for the matter to be listed. They were instructed to return at 10:30 am on Tuesday, 8 May. While listing is normally decided by the CJI, since the petition here deals with a proposal to impeach him, the petitioners had approached the senior-most judge of the Court after him, Justice Chelameswar.
On Monday evening, the Supreme Court causelist for the next day shows that the matter has been listed before a bench of Justices AK Sikri, SA Bobde, NV Ramana, Arun Mishra and AK Goel at 10:30 am on 8 May instead.
Here are the arguments raised by the MPs.
Chairman of Rajya Sabha Cannot Reject an Impeachment Motion on Merit
The Congress MPs argue that the procedure for removal of a Supreme Court judge does not give the Chairman of the Rajya Sabha (or the Speaker of the Lok Sabha) the power to reject a notice of motion on its merits.
According to them, the chairperson of a House of Parliament where a motion to impeach a judge is brought only has the power to reject it if it doesn’t have the minimum number of MPs required. In this case, since 64 sitting Rajya Sabha MPs had signed the notice, the numerical requirement has been met (50 signatures are required in the Upper House).
The petition argues that Naidu should only have looked into the genuineness and authenticity of the signatures, and not whether the charges raised by the motion were proved or not.
Section 3(2) of the Inquiry Act provides an elaborate process for investigating the alleged misbehaviour or incapacity of a judge, by a special Inquiry Committee. As a result, when Naidu rejected the notice of motion on its merits, he was encroaching on the role the Committee was supposed to play, and pre-judging the issue, which is not what the Constitution (Articles 124(4) and 124(5)) or the Inquiry Act say.
Decision Relies on Dissenting Judgment Which is Not Law
The Congress MPs’ petition also points out that Naidu has cited an incorrect authority for his contention that the chairperson is supposed to consult with legal experts and examine the charges in the notice and the evidence placed in support of it.
In paragraph 5 of his Order, Naidu quotes a passage from the case of M Krishna Swami vs Union of India (1993, Supreme Court) to make this point.
However, as the petition points out, this is from paragraph 45 of that judgment, which forms the minority opinion of one judge in that case, and therefore has no legal authority. The other four judges who heard that case expressly said they don’t agree with his opinion.
Decision was Made Without Proper Consultation
In paragraph 7 of his Order, Naidu states that when making his decision, he consulted “legal luminaries, constitutional experts, former Secretary Generals, former Law Officers, Law Commission Members and eminent Jurists”.
According to the Congress MPs, the Rajya Sabha Chairman should have consulted with other senior judges of the Supreme Court, in particular the other members of the Collegium. Failing to do so meant Naidu’s exercise of the discretion to consult with legal experts was conducted in an arbitrary manner.
They also raise doubts about Naidu’s claim that he actually consulted with the experts mentioned by him. In paragraph 9 of his Order, Naidu says he had “detailed personal conversation” with some of these experts. The petition points out that the motion was presented to him on 20 April, and that he was then out of town for most of the next two days. Despite this, his Order rejecting the motion was passed on 23 April at 9:30 am.
Decision Relies on Reports and Comments in Newspapers
The Congress MPs next take exception to the fact that Naidu has noted that he reviewed comments by legal experts and editors of prominent newspapers who had said that the notice of motion didn’t make a good argument for impeachment.
They argue that such considerations are “extraneous and irrelevant” and cannot be used to stop the impeachment process.
VP Wrongly Says That Notice has to be Conclusive
Naidu’s Order argues that the language used by the MPs in the notice of motion shows that they were unsure of their case, instead indicating “a mere suspicion, a conjecture or an assumption.”
According to him, this does not constitute proof beyond reasonable doubt, which is required to satisfy the test of “proved misbehaviour” under Article 124(4) of the Constitution, and the conversations between third parties relied on by the motion cannot be material evidence against the CJI. Presumably, this is a reference to the transcripts of phone conversations that the CBI has relating to the Prasad Education Trust, which the Opposition MPs attached in support of the impeachment motion.
The petition argues that this amounts to “putting the cart before the horse” as the alleged misbehaviour is only to be proved or disproved after investigation by the Inquiry Committee (see the first argument). The language of the notice, according to them, is appropriate since it says a detailed investigation is needed.
Decision Wrongly Considers Issues to be Internal Matters of Supreme Court
The petition also challenges paragraph 12 of Naidu’s Order which says that “clearly this is an internal matter to be resolved by the Supreme Court itself.” Naidu had quoted the decision of a Constitution Bench headed by CJI Misra in November 2017 in Kamini Jaiswal’s case to point out that the CJI is the ‘Master of the Roster’ when it comes to assignment of cases to judges.
The selective assignment of cases to preferred judges was one of the charges raised in the impeachment motion, but the Congress MPs point out that Naidu doesn’t specify which charges are internal matters and which aren’t, just dismissing them all as such. According to them, the charges in the impeachment motion that can’t be brushed aside like this – at the very least, the allegation of illegal acquisition of land from the 1980s (Charge 4) certainly cannot be called an internal matter.
Decision Doesn't Explain Why Charges Haven't Been Established
The final argument of the Congress MPs is that Naidu’s Order doesn’t actually address the charges in the impeachment motion, and still says that they haven’t been established.
According to them, only one charge (abuse of CJI’s power as Master of the Roster) is addressed in the Rajya Sabha Chairman’s decision, and even that is something which the Inquiry Committee is supposed to decide, not him. Naidu has therefore made an impermissible quasi-judicial determination in relation to this charge.
The Congress MPs claim that Naidu has failed to address all the legal authorities and evidence raised in relation to the other charges, and so the dismissal of those charges has been done in “a cavalier and most cryptic and abrupt manner”.
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