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Congress-led Opposition moves impeachment motion against CJI Dipak Misra: What does it mean? What's next for Oppn as it lacks numbers in Parliament?

No Chief Justice has ever been impeached in India and any decision on the notice by the Opposition parties against the CJI is likely to be taken by the Vice President following legal consultations.

Edited by: India TV News Desk, New Delhi [ Updated: April 21, 2018 13:16 IST ]
Congress leaders Ghulam Nabi Azad, Kapil Sibal, CPI's D

Congress leaders Ghulam Nabi Azad, Kapil Sibal, CPI's D Raja and KTS Tulsi during a press conference after Opposition parties submitted a notice to Rajya Sabha Chairperson Venkaiah Naidu to initiate impeachment proceedings against CJI Dipak Misra in New Delhi.

The seven Opposition parties led by the Congress on Friday moved a notice for the impeachment of Chief Justice of India Dipak Misra, accusing him of "misbehaviour" and "misuse" of authority. 

Levelling five allegations, leaders of the seven Opposition parties met Vice President M Venkaiah Naidu, who is also the Chairman of the Rajya Sabha, and handed over the notice of impeachment bearing signatures of 64 MPs and seven former MPs, who recently retired. 

RS Chairperson Venkaiah Naidu is likely to seek legal opinion before accepting or rejecting the motion moved by 64 MPs of seven Opposition parties.

Following are the five allegations in the impeachment motion submitted by the Opposition parties to Rajya Sabha Chairman M. Venkaiah Naidu against Chief Justice Dipak Misra.

‘Five charges of acts of misbehaviour’

1. The first charge relates to the conspiracy to pay illegal gratification by persons in relation to the Prasad Education Trust case and the manner in which the case was dealt with by the Chief Justice. It is on record that the CBI has registered an FIR. There are several recorded conversations between middlemen including a retired judge of the Orissa High Court excerpts of transcripts of which are set out in the articles of charge. References to the Chief Justice by innuendo in these conversations are evident. The denial of permissions to the CBI to register an FIR against the Justice Narayan Shukla of the Allahabad High Court, when the CBI shared incriminating information with the Chief Justice was itself an act of misbehaviour. All this requires a thorough investigation.

2. The second charge relates to the Chief Justice having dealt on the administrative as well as on the judicial side with a writ petition which sought an investigation into the matter of Prasad Education Trust, in which he too was likely to fall within the scope of investigation. The practice in the Supreme Court is that when the Chief Justice is in a Constitution Bench, and matters are to be listed, requests for listing are made before the first puisne Judge. This is an age old practice. On November 9, 2017, when a writ petition was mentioned before Justice J. Chelameswar at 10.30 a.m. since the Chief Justice was sitting in a Constitution Bench, the same was directed to be listed later the same day. When the matter was taken up, a note dated November 6, 2017 was placed before the judges hearing the matter by an official of the Registry. 

3. The third charge alleges that the note of November 6 brought to the attention of Justice Chelameswar on November 9 as the matter was taken up was antedated. The charge of antedating is by all accounts a very serious charge.

4. The fourth charge relates the Chief Justice having acquired land when he was an advocate by giving an affidavit which was found to be false. Further despite the orders of the ADM, cancelling the allotment in 1985, the Chief Justice surrendered the land only in 2012 after he was elevated to the Supreme Court. 

5. The fifth charge relates to the abuse of exercise of power by the Chief Justice 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. 

Video: We have moved an impeachment motion seeking the removal of CJI Dipak Misra: Congress

What the law says

No Chief Justice has ever been impeached in India and any decision on the notice by the Opposition parties against the CJI is likely to be taken by the Vice President following legal consultations. 

- Article 124(4) of Constitution of India lays down the procedure for removal of Chief Justice. Though, the Chief Justice remains in the office till the age of 65 years, he can be removed on the grounds of misbehaviour or incapacity only through a process of impeachment by Parliament.

- If the Rajya Sabha Chairperson accepts the impeachment motion, the law provides for Constitution of a three-member committee comprising a Supreme Court judge, Chief Justice of a High Court and a distinguished jurist to look into the complaint. 

- A judge can be removed from office through a motion adopted by Parliament on grounds of ‘proven misbehaviour or incapacity'. 

- The Constitution provides that a judge can be removed only by an order of the President, based on a motion passed by both Houses of Parliament. 

- The process for removal of a Supreme Court judge has been mentioned in Article 124 of the Constitution and the procedure has been elaborated in the Judges Inquiry Act, 1968. 

- The impeachment motion originates when at least 50 members of Rajya Sabha (100 in the case of Lok Sabha) give a signed notice to the presiding officer. 

- The petition given to Naidu on Friday has been signed by 64 members of the Upper House. 

- If a committee is constituted, it frames charges based on which the investigation will be conducted and a copy of the charges is forwarded to the judge who can present a written defence.

- Upon completion of investigation, the committee submits its report to the presiding officer who lays it before the relevant House. 

- If the report records a finding of misbehaviour or incapacity, the motion for removal is taken up for consideration. 

- The motion for removal is required to be adopted by the both Houses of Parliament by a majority of the total membership of that House and a majority of at least two-thirds of the members present and voting. 

- If the motion is adopted in both Houses, it is sent to the President who issues order for the removal of the judge.

Video: BJP slams Oppn for motion of impeachment against CJI Deepak Misra

Where are the numbers

While the notice for CJI’s removal has been handed over to the vice president, here is what the numbers say about the probability of the impeachment process get completed-

- The Congress-led Opposition moved the notice for impeachment with signatures of 64 MPs of the Upper House – a number more than the required strength of 50 members. 

- To move a notice for impeachment in the Lower House, the minimum required strength of support should be 100. However, the total strength of the seven parties – Congress (48), CPI-M (9), NCP (6), SP (7), CPI (1), Muslim League (1) and BSP (0) – counts up to only 72 in the present Lok Sabha. 

- On the other hand, the ruling BJP’s strength is 68 in Rajya Sabha and 274 in the Lok Sabha. The NDA numbers go up to 315 in Lok Sabha and 87 in Rajya Sabha.  

What's next for Oppn if Naidu rejects motion

Congress sources said that if the impeachment notice given by the seven Opposition parties on Friday was rejected by the Rajya Sabha Chairman, they can seek a judicial review and the matter then would come up before the senior most judge of the apex court after the CJI.

They also hoped that the Chairman would take a decision on their impeachment motion in a reasonable time.

They noted that court rulings have laid down that decisions in case of anti-defection cases should be taken by the concerned speaker in a reasonable period of time. 

They added that the tradition in India is that from the time a motion is moved, the judge must recuse himself from judicial work.

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