Congress on the Fringe
         Date: 17-May-2018

Kapil Sibal , with his overzeal to corner the CJI, had to bite the dust while withdrawing  the petition challenging the rejection of impeachment notice

 

“I don't think anyone should cast aspersions on the judiciary. The judiciary is well equipped to handle very difficult matters. Not everyone will always agree with the judiciary. The judiciary itself doesn't always agree amongst itself, there are dissenting judges. There's always a possibility that a larger bench will overturn the decision even of the highest court. But I think that all of us who work here understand that this is part of a procedure. We should respect it. Ultimately the judiciary must have the respect of everybody in this country."

Who said this? And when? Can you  guess? Prime Minister Modi? Jaitley? Ravi Shankar Prasad? No.

It was Salman Khurshid, Senior leader of the Congress Party and a designated Senior Advocate of Supreme Court of India.

Merely a few minutes after Kapil Sibal and Ghulam Nabi Azad briefed the media on their decision to impeach Chief Justice of India Dipak Misra, Salman Khurshid went on record saying this. Khurshid was echoing what every right-thinking person in India feels today about unabashed attack on judiciary by Congress Party and few of its political associates.

Article 124 (4) of the Constitution of India provides that ‘A Judge of the Supreme Court shall not be removed from his office except by an order of the President passed after an address by each House of Parliament supported by a majority of the total membership of that House and by a majority of not less than two-third of the members of the House present and voting has been presented to the President in the same session for such removal on the ground of proved misbehavior or incapacity.’

A plain perusal of this constitutional provision would show that nowhere the word impeachment is used. A Supreme Court judge cannot be removed from his office by impeachment but by an order of the President of India after presenting the support by a majority of the total membership of that House and by a majority of not less than two-third of the members of the House present and voting. The ground for the order of the President has to be proved misbehaviour or incapacity.

Huge volumes of articles and analyses are already in public domain on how the motion of the 64 proposers of the Parliament contained absolutely no material that remotely related to misbehaviour or incapacity, leave apart the proved misbehaviour or incapacity.

Vice President of India, the ex-officio Chairperson of the Rajya Sabha, after consulting various legal luminaries and constitutional experts passed his decision on  April 23, 2018, and rightly rejected the Notice of Motion based on mere suspicion, conjecture or assumption. The challenge to this decision has permanently perished as Supreme Court dismissed the Petition as Sibal withdrew it on  May 8, 2018.

The core concern that springs from this whole saga is not contents or spirit of Notice of Motion. The motion anyways has met its logical fate. In fact, even the legal or political novices across the political spectrum would have precisely predicted the fate of the minutes after it sprang. But the prime concern is the fringe position that Congress Party has taken in this whole episode. Leave aside the Parliamentary Left, even the left fringe elements, the Maoists, who firmly believe that ‘State Political power grows out of the barrel of a gun’ too had not confronted the judicial institutions. The office of the Chief Justice and Judges of the Constitutional Courts was never under peril, even in their heydays - Naxalbari and the infamous Emergency included.

Congress Party has put even these fringe elements to shame by taking cudgels against the judiciary, that too, by taking recourse to our Constitution.

It is one thing to criticise the Government; it is the very heart of a vibrant democracy. However, attacking the Judges and judicial institutions, in the name of political opposition to the ruling party is a complete anathema to the principles of civility democratic functioning. Congress Party in its desperation to usurp political power should have never used this hazardous implement.

(The writer is a practising advocate and founder of Navayana Law Offices)

 

‘You cannot move the motion based on hearsay —Justice(Retd) Santosh Hegde


 

Eminent jurist and former Karnataka Lokayukta Justice Santosh Hegde spoke to the author on the recent moves to impeach the CJI.

What is your opinion on the recent moves to impeach the CJI? Do you think that there was anything that necessitated the move?

The Chief Justice of India cannot be ridiculed by making allegations based on suspicion. There should be some basis for your motion. There should be concrete evidence for the allegations you say he has committed. Only then one can go by that. You cannot move the motion based on assumptions saying that “He may have committed or He might have committed, etc” are no grounds to move such a motion.

Can the motion be moved based only on doubts?

Motion cannot be moved based on doubts alone. If there is an assertion that any illegality has been committed, a subsequent inquiry alone has to ascertain the facts. In such cases, to find out the facts the Vice President or the speaker will appoint a committee with members to find the truth. A motion cannot be moved based merely on someone else’s allegations. These people don’t have the courage to mention that they are prejudiced based on some statements made by few judges, which were also based on hearsay. They don’t have any documents in their hand to show that the things alleged have been done.

Do you think that the Vice President move to reject the impeachment motion was the right one?

According to me the motion could not have been admitted at all. The Vice President not only considered all the aspects but has consulted all the legal experts including the secretary generals of the parliament. In my opinion, it was the right move.

Sir, what is your opinion on the recent controversy about the elevation of a judge to the Supreme Court?

I don’t wish to comment on the elevation of judges now. It would not be fair for me to comment on something that I don’t have information about.