A Shot in the Foot
         Date: 30-Apr-2018

A grave attempt to cow down the CJI, one of the senior-most functionaries of the Constitution, stands aborted, but it underlines the nefarious designs being constantly plotted to disrupt and undermine the system


 

 

The vicious political contours of the impeachment motion against Chief Justice of India Dipak Misra filed by 64 Rajya Sabha MPs were rather too clear right from the word go. It was widely perceived that covertly the motion looked like an attempt at embarrassing the Modi government as much as to subject the judiciary to political intimidation.
 
The frivolity of the impeachment motion was no less glaring as the leader of the Opposition in the Rajya Sabha Gulam Nabi Azad, after submitting it to Rajya Sabha Chairman M Venkaiah Naidu, sought to amend the number of signatories from 71 to 64 saying that seven of them had already retired since they appended their signature to the motion.


At the very outset, the impossibility of it going even a step forward was clear to legal luminaries like Kapil Sibal, who spearheaded the motion, yet the doggedness of a conglomerate group of 64 MPs, drawn from seven political parties, trying to make a spectacle out of it was rather too stark and was nothing but an unabashed attempt to run down the judiciary as an institution.
  
Kapil Sibal's overwhelming zeal to push through the petition in a flippant manner was exposed as the media raked up his past observations in the Lok Sabha when he had defiantly opposed the practice of subjecting judges to impeachment speaking in favour of Justice Ramaswami. He had alleged, "no judge can be guilty merely because 50 MPs sign a motion!" But this time his nefarious designs to cow down the judiciary in the teeth of stiff opposition from some of his senior party colleagues only reflected the delirium that has seized some of the Congress leaders and the Left. And it echoed, by now, familiar tones of “disrupting India”.
 
 
The petition was, in fact, orchestrated amid voices of dissent that started rocking the corridors of the Supreme Court in January last to time with the rejection of petitions seeking an independent probe into the death of judge BH Loya, who was hearing the Sohrabuddin Sheikh encounter case. The storm against the CJI had apparently started building in January itself when four senior-most judges of the apex court expressed their "displeasure" with the functioning of the CJI. Thereafter, periodically the judges would voice their resentment publicly as well making it clear that they relentlessly wanted to carry on with the momentum built on the CJI.

The Rajya Sabha Chairman is believed to have held discussions on the motion with more than a dozen legal luminaries including former Supreme Court judge B Sudarshan Reddy Attorney General KK Venugopal, and former top law officer K Parasaran.
 

Was the motion drafted many days before it was submitted to the Chairman?

 
Rajya Sabha Chairman M Venkaiah Naidu, while rejecting the motion, did not miss the sight of it as he observed that the " allegations emerging from the present case have a serious tendency of undermining the independence of the judiciary which is the basic tenet of the Constitution of India ". Union Finance minister Arun Jaitley was quick to say publicly that the impeachment motion was "filed with a collateral purpose of intimidating the CJI". That the Congress itself was a divided house on the impeachment move was glaringly highlighted by the fact that senior Congress leaders like Manmohan Singh, P Chidambaram, Salman Khursheed, Ashwani Kumar, both former Union Law ministers, and Manish Tiwari stayed away from it with persons like Ashwani Kumar openly sounding their dissent.
 
Not just that even two major Opposition parties, the DMK and the Trinamool Congress, which do not miss a chance to take the Modi government head-on, declined to join hands with the petitioners indicating clearly that it was a partisan exercise of the group apparently led by Kapil Sibal. West Bengal chief minister Mamata Banerjee categorically said the Congress was wrong in giving an impeachment notice as it tantamounted to interfering in the judiciary. “I told Sonia Gandhi, Rahul Gandhi not to go for impeachment,” Banerjee said.
 
The grounds on which the Rajya Sabha chairman shot down the petition is yet another reflection on the triviality that the petitioners lent to the exercise. The five grounds on which the petition was set aside included that the petition has been filed on uncertain grounds using words like " may have been", "likely", "appears to be" which does not constitute proof against the CJI, the allegations have serious tendency to undermine the independence of judiciary, there is no concrete verifiable imputation against the CJI, no credible or verifiable information giving "indication of his "misbehaviour" or "incapacity" to deliver is made out in the charges.
 
The Chairman underscored the fact saying that "the phrases used by the Hon'ble Members of Parliament themselves indicate a mere suspicion, a conjecture or an assumption. The same certainly does not constitute proof "beyond reasonable doubt", which is required to make out a case of "proved misbehaviour" under Article 124 (4), Conversations between third parties with dubious credentials, which have been extensively relied upon, cannot themselves constitute any material evidence against the holder of the office of the Chief Justice of India."
 
Going through the five allegations mentioned in the Notice, I am of the view that they are neither tenable nor admissible, Considering the totality of facts, I am of the firm opinion that it is neither legal nor desirable or proper to admit the Notice of Motion on any one of these grounds.
 
While taking a decision in the admission of such a notice against one of the senior most constitutional functionaries of the country, one should examine all the factors very carefully and dispassionately, because initiation of such proceedings tends to undermine the faith of the common person in the judicial system. The Rajya Sabha chairman took exception to the fact that "by going to the press, established parliamentary customs and conventions were disregarded by the MPs who brought the motion."
 
Expressing serious concern at the "unsubstantiated charges against the CJI" being discussed in the media the Chairman underlined "this act of Members of discussing the conduct of the CJI in the press is against propriety and parliamentary decorum as it denigrates the institution of CJI. I am also aware that there have been a spate of statements in the press that seem to vitiate the atmosphere. I thought I should, therefore, expedite my decision and end needless speculation.
 
The ominous link between the senior judges and the politicians was laid bare when Kapil Sibal, while addressing the media before filing the petition, said “We were hoping that the anguish of the judges as reflected in their statements to the Press would be addressed by the Chief Justice and the Chief Justice in response would set his house in order. More than three months have passed. Nothing has changed.”
 
Many eminent jurists and former judges questioned the propriety of the impeachment petition filed by the Congress-led MPs. Justice (Retd) RS Sodhi, within hours of the motion being rejected, tweeted "You know you don't have any ground, you know you can't impeach him. In spite of knowing all that still you go on & plunge in this ill-advised move. This can't be considered as a wise act."
 
Eminent jurist Fali S Nariman said the issues raised in the impeachment notice were not of "sufficient gravity and rightly rejected" by the Vice-President. Nariman said Naidu, the chairman of the Rajya Sabha, was the only statutory authority to take the decision on the notice.
 
"When you have a man like the chief justice of the Supreme Court, it (impeachment notice) has to have something that is far more important than just saying he did not do this or that. The vice president has the statutory authority and he has rightly rejected the notice," Nariman said this move by the Opposition led by the Congress was only to demean the institution of the Supreme Court and it was not about Justice Misra. Additional Solicitor General Satya Pal Jain said the impeachment motion was meant to "send a message to the judiciary that if it did not decide cases as per their wishes, they will indulge in character assassination of the judges".
 
Former Solicitor General of India Soli Sorabjee also minced no words in coming down heavily for the Congress action.He said the Congress-led opposition had no chance to succeed in the Supreme Court against Vice President M Venkaiah Naidu's decision rejecting impeachment notice against Chief Justice of India Dipak Misra. Reacting to Naidu's order rejecting the impeachment notice against the CJI moved by 64 MPs, the former Attorney General of India said that the RS chairman has "applied his mind" after consulting legal experts on the issue. 
 
Naidu reportedly also discussed it with former Lok Sabha secretary general Subhash Kashyap, ex-law secretary PK Malhotra and former legislative secretary Sanjay Singh, besides senior officials of the Rajya Sabha Secretariat. BJP leader Subramanian Swamy said, "He (Venkaiah Naidu) has decided correctly. He need not have taken two days to make the decision. It should've been considered null and void and thrown out from the beginning. Congress committed suicide by doing this."