Impeaching CJI Dipak Misra: Are the Communists living in fool's paradise?

Prakash Karat (left); Sitaram Yechury
The Communist Party of India (Marxist) has asserted that it will bring an impeachment motion or what constitutional purists call removal proceedings against sitting Chief Justice of India (CJI) Dipak Misra in the Budget session. A look at the permutations, combinations and intricacies of rules involving removal of judges suggests that the CPM’s shot at springing back to political relevance may not be as easy as its senior leaders have made it sound in public. 

To start proceedings to remove Justice Misra from his office, the Communists would need to give notice for a motion to President Ram Nath Kovind. 

 
According to the Judges Inquiry Act 1968, the notice can be given either in the Lok Sabha or the Rajya Sabha. If the notice is given to Lok Sabha, it needs to be backed by 100 members and if given to the Rajya Sabha it needs to be backed by 50 members. 

The Communists can give a notice in both the Rajya Sabha and the Lok Sabha, with some help from its erstwhile ally Congress. In a best case scenario, with the support of anti-Bharatiya Janata Party outfits such as the Trinamool Congress and the Samajwadi Party, the Communists can conjure 134 votes in the Rajya Sabha. This is well above the minimum of 50 members required to initiate the notice for removing the country’s most powerful judge. If news reports are to be believed, the Congress, which has 54 members in the Rajya Sabha, is not too keen on being part of the campaign to remove Justice Misra. Even if the Congress decides to not jump onto the bandwagon, the Communists would still have the minimum numbers with the help of other parties to initiate a motion in the Rajya Sabha. Some of the dark horses in this quest could be the Aam Aadmi Party (four members) and All India Dravida Munetra Kazhagam (13 members) who could go either way, depending on their political interests. (See graphic)

In the Lok Sabha too, if the Communists get the support of the same parties that are backing it in the Rajya Sabha, it could ratchet up 173 MPs. With the minimum requirement of 100 MPs, the CPM could initiate a notice in the Lok Sabha as well. 

While giving a notice to remove Justice Misra in the Rajya Sabha may be easy with Congress backing, the rest of the process may be paved with impediments that the Communists may not be able to circumvent with ease. The Judges Inquiry Bill, 1968 states that once the notice is given, the speaker of the House may or may not accept the motion. In case the Communists take the Rajya Sabha route, this discretion would lie with Rajya Sabha chairman Venkaiah Naidu. If Naidu accepts the motion, he will be required to constitute a three-member judicial committee to frame specific charges against Justice Misra on the basis of which an investigation would be conducted against him. This is where things could get tricky. The three members of the committee need to include a Chief Justice or a judge of the Supreme Court, a chief justice of any high court and a ‘distinguished jurist.’ 

With four Supreme Court judges openly antagonistic to Justice Misra, there could potentially be questions raised over the composition of the committee formed to investigate charges against him. The inclusion or exclusion of the hostile judges -– Justices J Chelameswar, Ranjan Gogoi, Madan Lokur and Kurian Joseph –- from the committee to investigate charges against Justice Misra would create its own set of complications. 

The Communists could also be racing against time in their quest for removing Justice Misra from the highest judicial office in the country. Justice Misra is slated to retire as the Chief Justice of India on October 2, 2018. This effectively gives the Communists two Parliamentary sessions -– the ongoing Budget session and the monsoon session -– to achieve its stated target. Once Justice Misra demits office later this year, none of these motions or reports would have any bearing on him. The Judges Inquiry Act ,1968 does not mandate any time limit within which the judicial committee needs to submit its report to the chairman of the Rajya Sabha. 

Even if the committee investigating the charges were to submit its report expeditiously and the motion were to be moved in Budget session before it ends on April 6, the Communists would find it hard to pass the third test for removing Justice Misra. 

According to Article 124(4) of the Indian Constitution, once the motion for removing a judge of the Supreme Court is placed on the floor of the Parliament, it needs to be supported by a “majority of the total membership of that House and by a majority of not less than two-thirds of the members of that house present and voting.” 

With support from the Congress, Trinamool Congress, Samajwadi Party and other smaller parties (but without the AIADMK), the Communists can get the support of 121 MPs in the Rajya Sabha. This is just short of the majority mark of 125 required to pass the first test of majority. In the Lok Sabha, where the majority is 273 MPs, the Communists, even in the best case scenario, with support from all anti-BJP parties, wouldn’t be able to conjure a majority with just 173 MPs backing its motion. In every likelihood, the motion to remove Justice Misra would be an exercise in futility. In the Rajya Sabha, the motion won’t be able to get a two-thirds majority of the members present and voting unless Bharatiya Janata Party and its allies refuse to turn up on voting day. Given that the Bharatiya Janata Party is backing Justice Misra’s credentials, this will be an unlikely scenario. In the Lok Sabha, the Communists wouldn’t even get a majority before it can be voted on by two-thirds of the members present and voting.  

However, if the motion comes this far before failing, the Communists can claim a political victory. Even though four judges of the highest court have questioned Justice Misra’s conduct, there is little clarity on the specific nature of charges against him. Even if the motion fails, the Communists, through deft political manoeuvering, can ensure that a judicial committee is formed and a report listing specific charges of alleged misconduct against Justice Misra is generated. The committee formed to probe Justice Misra among other things can summon documents, written statements from Justice Misra and examine witnesses under oath. With allegations of preferential treatment of sensitive cases involving big names doing the rounds, the Communists could well succeed in opening a Pandora’s box and potentially embarrassing the Bharatiya Janata Party even if they fail to throw the baby out with the bathwater.