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Impeachment motion against CJI Dipak Misra, all possible scenarios

India Today logo India Today 21-04-2018 Anusha Soni
Dipak Misra with Rahul Gandhi (R) and Arun Jaitley (L) © Getty Dipak Misra with Rahul Gandhi (R) and Arun Jaitley (L)

The Opposition parties are set to move the impeachment motion in the Rajya Sabha. 71 legislators from the upper house have signed the motion so far. Now this motion shall be presented to the Vice President who is the Chairperson of Rajya Sabha.

Here are the possible scenarios that may follow:

1. The motion will be presented to Vice President Venkaiah Naidu. Under the Judges Enquiry Act, 1968 - the Vice President who is the Chairman of Rajya Sabha has the discretion to accept or reject the motion. The minimum number of signatures is fifty under the Act. This discretion with the Chairman is not so much about the number of signatures but rather a broad one.

Read: Why Manmohan Singh, Chidambaram didn't sign motion seeking CJI Dipak Misra's impeachment

Section 3(1)(b) of the Act says, "..the Chairman may, after consulting such persons, if any, as he thinks fit and after considering such materials, if any, as may be available to him either admit the motion or refuse to admit the same,"

Watch: Congress divided over CJI impeachment notice?

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(Video by Times of India)

Hence, the Chairman is free to have consultation with legal experts or any other persons and then take his decision. It's an extensive power granted keeping in view the sensitivity of the matter. If political parties merely on the basis of getting fifty signatures were allowed to move impeachment motions against top judges, then the judiciary shall become openly amenable to political onslaught.

The test is of reasonableness, whether there are actual grounds for such motion, whether the introduction of such motion is in furtherance of constitutional values and principles. Most likely the present motion moved by the Opposition Parties with fifty signatures shall not find merit with the Chairman and the request may be declined. Post the judgment in the case Judge Loya, the entire impeachment exercise atleast postures to be politically motivated.

Read: All eyes on V-P Venkaiah Naidu; will he dispose plea and when?

2. If the vice President/Chairman rejects the motion then the decision is likely to be challenged at the Supreme Court directly. Now this likely challenge at the Supreme Court presents real constitutional tangle? The apex court is a completely divided house right now.

The CJI cannot hear this matter, neither can the other top four judges who have openly voiced their dissent with working of the CJI office. Even if the matter is allocated to any of the top four judges, it shall remain a constitutionally precarious situation.

More importantly, who shall exercise administrative power of allocation of cases, since the power exclusively rests with the CJI office. Will there be a full court reference on the matter? This likely development shall have adverse effects on the top judiciary.

It will further deepen the schisms, weaken the judiciary further before a very powerful executive. A weak judiciary, in times of peak political opportunism is an equal threat to democracy, at par with a corrupt one.

3. If the motion is accepted, then a committee shall be formed- In a rather unlikely scenario, if the Chairman accepts the motion than a committee shall be formed of three members to probe the charges under the Judges Enquiry Act Section 3(2). Amongst the three members one has to be either CJI or any other SC judge.

The second member has to be from High Courts; any Chief Justice or other senior judge from the High Court.

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The third is an eminent jurist appointed by the Chairman. This committee gives a reasonable opportunity to the judge to defend himself and has the powers of a civil court-to summon, ensure presence etc. If the committee finds guilt than the motion is put to vote. If two-third majority votes for removal than an impeachment is recommended to the President. If committee finds otherwise than all the charges are dropped.

4. The course ahead for the CJI may be a tricky one. One has often witnessed the practice at High Courts that if an enquiry is pending of a certain judge than the judicial work is withdrawn or the judge goes on leave.

Now this motion, however politically motivated is signed by 71 legislators of the Rajya Sabha, it shall be presented to the Chairman for admission? What shall the CJI do? Should he continue to work and discharge his duties or he should rather go on a 'leave'? How can such an important constitutional position remain vacant or be in any sort of limbo? Kapil Sibbal has gone ahead and asked that CJI should refrain from taking any judicial work but there is no binding precedent but rather just a loose argument of propriety. However for the office of CJI loose arguments of propriety hold much value and credence.

5. Its imminent that Supreme Court is headed for further troubled times- Whichever way the impeachment motion goes, the top court is headed for troubled times.

The battle of perception is already lost. With the CJI and top four judges unable to set the house in order, political parties whether the ruling or opposition has found ways to blackmail and leverage the judiciary.

This chapter shall indeed go as a dark one in the judicial history and also a difficult phase for the 'rule of law' and Indian democracy.

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