SC crisis: Opposition mulls impeachment motion against CJI Dipak Misra

Justice Dipak Misra. Photo: PTI
The Opposition is mulling moving an impeachment motion against Chief Justice of India (CJI) Dipak Misra. It is usually a long drawn process and is sure to get defeated, given the Opposition numbers in either of the Houses, if the Bharatiya Janata Party-led National Democratic Alliance opposes the motion.

There could also be divisions within the Opposition. None in the Opposition expect Odisha Chief Minister Naveen Patnaik and his Biju Janata Dal to support an impeachment motion against the CJI. The CJI hails from Odisha and is set to retire later this year.

Even within the Congress, there are those who advise against the party supporting an impeachment motion against Misra. They argue this will send a message to the judiciary, which is already apprehensive of political interference after the National Judicial Appointments Commission that Parliament passed and the Supreme Court struck down, that the Congress-led Opposition is interfering in judicial matters.

"What kind of message would we be sending to the rest of the two dozen judges that we will move an impeachment motion on an issue that falls under the ambit of the CJI's powers," a senior Congress leader, who is also an advocate, said. He makes a distinction between previous impeachment motions that dealt with allegations of corruption against judges.

Four Supreme Court judges – J Chelameswar, Ranjan Gogoi, Madan B Lokur, and Kurian Joseph — on January 12 raised concerns over allocation of sensitive cases to particular Benches. Three of these judges, apart from Justice Gogoi, retire this year. But there is also a view within the Congress that the issues that these four judges have raised should be addressed.

Senior lawyer Prashant Bhushan has demanded an investigation into allegations of corruption as well. Opposition leaders, like Communist Party of India (Marxist) Sitaram Yechury, who support moving an impeachment motion, understand that it would be defeated. But they believe that the process will bring out in the public domain issues that the judiciary needs to address, but is failing to do so, to put its house in order.  

The impeachment process

The process to impeach a judge is onerous. Article 124 of the Constitution of India envisages the establishment of the Supreme Court of India and the appointment of judges. It also details the guidelines for the impeachment of judges. It states that removal has to be on the grounds of "proved" misbehaviour or incapacity, but 'misbehaviour' is not defined.

The Judges (Inquiry) Act, 1968, prescribed the procedure for removal of Supreme Court and High Court judges. An impeachment motion should be signed by at least 50 MPs if it is moved in the Rajya Sabha and 100 if moved in the Lok Sabha. The Rajya Sabha Chairman, or the Lok Sabha Speaker, as the case may be, after due consideration and consultation, may admit or refuse to admit the motion.

If the motion is admitted, the Chairman, or the Speaker, as the case may be, constitutes a three-member committee. The committee comprises a Supreme Court judge, a Chief Justice of the High Courts and a distinguished jurist.

The committee frames definite charges against the judge and conducts its investigation, where it has powers of a Civil Court in terms of summoning persons for examination on oath, production of documents, etc.

If the committee absolves the judge of any misbehaviour or incapacity, the motion is dropped. If it finds the judge guilty, of misbehaviour or incapacity, the motion is taken up for discussion by the House where it was initially moved.

It needs to be passed with at least two-thirds majority of half the strength of that House. If passed, the motion is then sent to the other House, and if passed there as well by the requisite majority, it is sent to the President of India for her or his assent. The two Houses need to complete impeachment proceedings within one session of Parliament.

Three instances of impeachment 

1) Justice V Ramaswami of the Supreme Court was the first judge against whom impeachment proceedings were taken up by Parliament. He was accused of lavish expenditure on his official residence during his tenure as the Chief Justice of Punjab and Haryana. The three-member committee appointed by the Lok Sabha Speaker found him guilty. The Lok Sabha took up the impeachment motion, but couldn't muster the requisite majority as the Congress and some smaller parties abstained.

2) Justice Soumitra Sen of the Calcutta High Court was accused of corruption that dated back to 1993. In 2009, 59 MPs signed the impeachment motion. A committee was set up, which found him guilty and the Rajya Sabha passed the motion in August 2011. The Lok Sabha was scheduled to discuss the motion on September 5 and 6, 2011, but he resigned on September 1. 

3) Justice Paul Daniel Dinakaran Premkumar, a Karnataka High Court judge, faced allegations of corruption. The Rajya Sabha Chairman formed a committee in January 2010 to examine the charges. The judge resigned on July 29, 2011, but registered his lack of confidence in the committee.