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Mainstream, VOL LVI No 20 New Delhi May 5, 2018

Impeachment, a Serious Matter

Saturday 5 May 2018, by Kuldip Nayar

It’s sheer arrogance. True, Chief Justice Dipak Misra denied permission to Allahabad High Court judge Nayaran Shukla to prosecute a Lucknow-based Prasad Education Trust, which runs a medical college. But this is not such a violation of law which should invite impeachment of the Chief Justice of India.

The Congress Party was divided but since its President, Rahul Gandhi, decided to move against the Chief Justice, even the balanced Kapil Sibal had to fall in line. Ashwini Kumar, another senior Congressman and an advocate, has made it clear that he was uncomfortable with the move for impeachment. Even people like former Prime Minister Manmohan Singh, P. Chidambaram and Abhishek Manu Singhvi, also lawyers, did not sign the motion.

Ghulam Nabi Azad, also a senior Congress leader, was reading the impeachment motion at the behest of Rahul Gandhi in the Rajya Sabha and collected signatures of its members. It is mandatory that such a motion has to be moved in the Upper House. The fact that the ruling Bharatiya Janata Party (BJP) did not have a majority in the Rajya Sabha also came in handy to the Congress and six other Opposition parties.

Despite the required number of signatures, Chairman of the Rajya Sabha M. Venkaiah Naidu, originally from the BJP, rejected the motion out-rightly. Vice-President Naidu, in his 10-page note, explained the swiftness of his decision, ascribing it to the seriousness of the charges and unnecessary speculation.

“All facts as stated in the motion don’t make out a case which can lead any reasonable mind to conclude that the Chief Justice on these facts can be ever held guilty of misbehaviour,†said Naidu. He had apparently consulted legal, constitutional experts and took notice of the media opinion, which has vehemently criticised the impeach-ment move.

Union Minister Arun Jaitley has, under-standably, called the impeachment notice a “revenge petition†, accusing the Congress and its friends of using as a “political tool†the impeachment notice against the Chief Justice, who retires in six months. The Constitution says the Chief Justice of India can be impeached only on grounds of proved misbehaviour or incapacity.

The Opposition backed its demand listing five grounds, which, the Congress said, equals misbehaviour. These included the assigning of sensitive cases to handpicked judges, raised publicly in January by four top judges who accused the Chief Justice of abusing his position as “master of the roster†. Subsequently, the next five topmost judges also held a press conference to air their views as the trigger was the Judge B.H. Loya’s death case. It has since been reassigned.

This was an unprecedented move. Similarly, the impeachment proceedings have never been taken up against a Chief Justice of India. The Chairman forwards such a notice to the Rajya Sabha Secretariat to verify two factors—the signatures of the members who signed the petition and whether rules and procedures have been followed. Obviously, Naidu was not convinced.

The debates of the Constituent Assembly indicate that the framers of the Constitution comprising all political parties were very cautious in laying down the impeachment clause. The members did not want the impeachment to be taken lightly. I am sorry to say that the Congress Party has thrown all cautions to the wind which the party itself was very careful about. Rahul Gandhi, by his behaviour, has disrespected the wishes of the Congress stalwarts at that time.

But one thing is clear. The Chief Justice has, indeed, compromised his position and the stature of his office. As pointed out by the topmost five judges, he has “abused his exercise of power†in choosing to send sensitive matters to particular Benches by “misusing his authority as Master of the Roster with the likely intent to influence the outcome†. In addition, the Chief justice had acquired land when he was an advocate by giving a false affidavit. Of course, he did surrender the land in 2012 after he was elevated to the Supreme Court. But then he took so much time to do so despite the allotment having been cancelled years earlier.

Of course, there are a few cases of High Court judges against whom impeachment moves were made. But before the moves could be made, they themselves resigned. For instance, Justice Soumitra Sen of the Calcutta High Court avoided the ignominy of becoming the first judge to be impeached by Parliament by tendering his resignation. He did so after the Rajya Sabha had passed the motion making him the first judge to have been impeached by the Upper House for misconduct. Justice Sen was found guilty of misappropriating Rs 33.23 lakhs under his custody as a court-appointed receiver in the capacity as a lawyer and misrepresenting facts before a Calcutta court in a 1983 case.

Similarly, Justice P.D. Dinakaran, Chief Justice of the Sikkim High Court, against whom the Rajya Sabha Chairman had set up a judicial panel to look into allegations of corruption, resigned in July 2011, before impeachment proceedings could be initiated against him. Corruption, land-grab and abuse of judicial office were among the 16 charges framed against Justice Dinakaran.

However, Justice V. Ramaswami is the only example with the dubious distinction of being the first judge against whom impeachment proceedings were initiated. In 1993, the motion was brought up in the Lok Sabha, but it failed to secure the required two-thirds majority. Justice Ramaswami was caught in a controversy for spending extravagantly on his official residence during his tenure as the Chief Justice of Punjab and Haryana in 1990. The Supreme Court Bar Association even passed a resolution calling for his impeachment.

Impeachment is a serious matter. It should never get politicised. Rahul Gandhi has done so. And, to that extent, he has weakened the judiciary. Since he heads an influential all-India party, he should be extra careful about his action. His mother, Sonia Gandhi, may not be familiar with the intricacies of politics. But then she should have advised his son to respect the spirit of the Constitution.

The author is a veteran journalist renowned not only in this country but also in our neighbouring states of Pakistan and Bangladesh where his columns are widely read. His website is www.kuldipnayar.com

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