In a major blow to the Congress-led Opposition, Rajya Sabha Chairman and Vice-President M. Venkaiah Naidu on Monday turned down the impeachment motion against Chief Justice of India (CJI) Dipak Misra on the ground that there was lack of "credible and verifiable" information on charges of "misbehaviour" which, he said, undermined judiciary's independence.
Naidu’s decision met with strong criticism from the Opposition, with the former Law Minister Kapil Sibal terming it as illegal and unconstitutional done in a "tearing hurry". He said the order will be challenged in the Supreme Court.
"It is illegal because the chairman has passed an order which is required to be passed after a full-fledged inquiry," Sibal said, adding that the Rajya Sabha chairman had to only ascertain whether the motion was in order.
Substantiating his argument, Sibal said that once the motion is admitted, then under the Judges (Inquiry) Act of 1968, the motion is sent to a panel of three - a sitting chief justice of a high court, a judge of the Supreme Court and a legal luminary, and added that did not happen in this case.
He also termed the upper house chairman's decision as "ill-advised", saying that he should have consulted the judges in the collegium taking a call on the privilege motion.
"It is ill-advised because the procedure requires him to consult CJI before he admits the motion. Now that he cannot consult CJI obviously (in this case), he should have consulted other members of the collegium. But he has chosen not to do that," Sibal said.
He further said some of the allegations mentioned in the motion relate to what is happening in court, so Naidu should have consulted consulted other judges.
He wondered what the hurry was to reject the motion which had the valid signatures of 64 MPs.
"I do not think momentous matters like this should be disposed of in this fashion. Remember, it is our privilege to move the motion. You cannot boot the privilege in this fashion," he said.
The order had shattered the confidence of the people and jeopardised the legal system, he added.
"It seems that the government is very keen that this (charge made in the petition) must not be allowed to be inquired into. Maybe they have information that the CBI has information, maybe by scuttling the inquiry they don't want a lot of information to come on record. It puts the judicial system into jeopardy," he said.
The order destroys the legitimate processes of the law. It seeks to ensure that no inquiry takes place, he added.
"We will certainly move the petition in the Supreme Court. We are confident that when we move the petition, the CJI will have nothing to do with it so that it is heard and the serious issues, which are constitutional in nature and which will determine whether we bring transparency to the system, would be heard in the court, Sibal said.
Earlier in the day, AICC media-in-charge Randeep Singh Surjewala criticised the decision and said it was a fight between forces "rejecting democracy" and voices "rescuing democracy".
Surjewala said within hours of 64 MPs submitting the impeachment notice, Leader of the Rajya Sabha Arun Jaitley had shown "naked prejudice" by calling it a revenge petition, "virtually dictating the verdict" to the Rajya Sabha chairman.
In a tweet, Congress spokesperson and lawyer Abhishek Manu Singhvi said Naidu "expectedly" rejected the impeachment motion and that too within a day of his return to Delhi.
However, BJP President Amit Shah attacked the Congress saying the opposition move was part of a larger trend to demonise and weaken every institution which seeks to maintain its individual identity and not kowtow to the dynasty.
Amit Shah said in a Facebook post that right now the buzzword for the Congress and their friends was 'impeachment'.
"The judiciary, which is an institution that is trusted by 125 crore Indians, has invited the wrath of Congress and the Nehru-Gandhi dynasty in particular. I will not get into the reasons (which everybody knows) but I will say that this is a part of a larger trend to demonize and weaken every institution that seeks to maintain its individual identity and not kowtow to the dynasty," he said.
Congress President Rahul Gandhi, who addressed a gathering here on Monday to mark the party's "Save the Constitution" campaign, accused the Modi government of "crushing" and "suppressing" the Supreme Court and asserted that his party would not allow the ruling alliance to derail institutions created by the Constitution.
Gandhi said that institutions such as the Supreme Court, high courts, the Lok Sabha, assemblies and the Election Commission have been built on the basis of the Constitution which has been given to the country by Dr. B.R. Ambedkar and the Congress.
"It has happened for the first time that four judges of the Supreme Court went to the people to seek justice. The Supreme court is being crushed, it is being suppressed. Parliament was not allowed to run," Gandhi said.
He alleged that people with Rashtriya Swayamsevak Sangh (RSS) background were being inducted into various institutions by the BJP-led government.
The Chairman's ruling came before proceedings opened in the Supreme Court on Monday apparently to enable the Chief Justice to continue his work uninterrupted.
"... we cannot allow any of our pillars of governance to be weakened by any thought, word or action," Naidu said in a 10-page order, holding that admission of the notice was "neither desirable nor proper".
"I am also aware that it is imperative that we should have extraordinary, important and substantial grounds for the removal of a judge," said Naidu, who held legal consultations on Sunday.
The motion alleged five charges of "misbehaviour" against the CJI including conspiracy to pay illegal gratification in a case relating to an educational trust and the alleged violation of code of conduct for judges by presiding over every bench that heard the case and passed orders.
The Chairman held that since the notice was signed by 64 members, it met the requirement of Section 3(1)(b) of the Judges Inquiry Act for moving a motion.
At the stage of admission, Naidu said he had to apply a test that if every statement stated in the petition was believed to be true, would it still amount to a case of "proved misbehaviour".
The Supreme Court said it was also salutary that before admitting the motion to remove a judge there shall exist factual foundation.
The Chairman referred to expressions "proved misbehaviour" and "incapacity" used in Article 124 (4) of the Constitution and said proved misbehaviour was an expression clearly distinguishable from misconduct as was apparent from the language of Article 124.
"The intent, gravity and onus are of a much higher degree. The prefix 'proved' places an obligation of actually proving the misbehaviour before the parliamentary procedure for removal of a judge can come into play," he said.
Naidu said the MPs who presented the petition were unsure of their own case. Page one of the petition used phrases such as "the facts and circumstances relating to Prasad Education Trust case saw prima facie evidence suggesting that the CJI 'may have been' involved in a conspiracy of paying illegal gratification..."
The motion also said that the CJI was "likely to fall" within the scope of investigation and that he "appears to have" anti-dated an administrative order.
"I am mentioning this fact because the phrases used by MPs themselves indicate a mere suspicion, a conjecture of an assumption. The same does not constitute prove 'beyond reasonable doubt', which is required to make out a case of 'proved misbehaviour' under Article 124 (4). Conversations between third parties with dubious credentials, which have been extensively relied upon, cannot themselves constitute any material evidence material against the holder of the office of the CJI," the order said.
(With inputs from agencies)