Ill-advised impeachment notice against Chief Justice of India Dipak Misra is bound to fail, it is nothing but blackmailing the judiciary

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The impeachment notice given by certain opposition parties, including Congress, against the Chief Justice of India Dipak Misra, is absolutely ill-advised and is bound to fail. This is just blackmailing the judiciary. This is clearly the worst that could have been expected from the Congress. Its own senior members such as former PM Dr. Manmohan Singh have not signed it, and as per media reports, some of the leading lawyers belonging to Congress, who are members of Rajya Sabha, such as Abhishek Singhvi and P. Chidambaram have also not signed this impeachment motion. Former Law Minister Salman Khurshid of Congress has also not supported the idea of impeachment. It clearly shows how divided is Congress itself on this issue. It reflects poorly on Rahul Gandhi, who can perhaps never get good advisers and will always be surrounded by sycophants advising wrong decisions.

There are two angles to the impeachment motion that make it useless. Firstly, with the BJP-led NDA opposing the impeachment motion, there is NO chance of the impeachment motion to succeed. Secondly, the impeachment can only be for proved misbehaviour or incapacity, but what the notice mentions is only vague accusations and allegations.

As per Article 124(4) of the Constitution of India, the motion for impeachment has to be passed by each House of Parliament supported by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present and voting. In the Lok Sabha, NDA has more than 310 members (maximum 545). In the Rajya Sabha, NDA (along with parties that generally support it) has more than 100 members (total 245). So, even if the opposition as a whole supports the impeachment motion, it cannot be successful to get two-thirds support in each House of the Parliament. In fact, even DMK and TMC are reported to be against the impeachment. Aam Aadmi Party (AAP) has also not supported the impeachment by calling it a joke. BJD will also be against it since CJI Dipak Misra is from Odisha.

Thus, the impeachment motion is bound to fail. There is no chance of its success.

Secondly, look at the accusations. As Times of India has pointed out the accusations against the Chief Justice of India are in the form of “may have been”, “likely to fall” and “appears to have”, etc. On the other hand, what Article 124(4) of the Constitution requires is proved misbehaviour.

As pointed out by former Supreme Court judge Justice K T Thomas, allegations listed by Opposition parties in their motion were not fit to be called allegations. One allegation relates to allotment of cases by the Chief Justice of India, but that cannot be an allegation since that has been the practice throughout the history of the Supreme Court, pointed out Justice Thomas. Chief Justice of India is the master of roster and it is he who has to allot cases to various benches.

I have myself written my critique in the recent past on certain issues relating to Justice Dipak Misra [please see: (1) The last institution that we trust, the Supreme Court, is imploding… and the blame goes to insiders; (2) My Lords, the Emperor has no clothes!!!; (3) What is the level of corruption in the Indian judiciary? Is something wrong with Indian judiciary?], however, filing a notice for impeachment on the basis of half-cooked allegations without proper proof would be doing immense harm to the image of the judiciary. It will politicise the judiciary.

Further, it is quite clear that the present impeachment notice is merely a blackmail tactics. For last about 2 months, there were media reports of signatures having been taken by opposition MPs, led by Congress, for such impeachment, but subsequently, it was clarified on behalf of the Congress party that such proposal has been dropped [see this 6 April 2018 statement of leader of the Congress party in Lok Sabha Mallikarjun Kharge].

Now, suddenly, one day after a bench headed by CJI Dipak Misra delivered the Judge Loya verdict, this impeachment notice has been given to the Chairman of the Rajya Sabha. In fact, the impeachment proposal was revived within hours of the Judge Loya judgment, though it took one day to file it with the Chairman of Rajya Sabha. This clearly shows political vendetta. [See my views on Judge Loya case.]

So, quite clearly, previously, the Congress leaders tried to blackmail the CJI by threatening impeachment in order to get favourable orders in Judge Loya case, Aadhaar case, Ayodha case. Then, they became silent, expecting that the CJI might have already come under pressure and would pass orders in above crucial cases in their favour. But, once Judge Loya case went against their expectations, the Congress immediately filed the impeachment notice in one day.

This is really unfortunate. More so, when the Congress knows for sure that the impeachment motion cannot be passed in Parliament since BJP would oppose it. Moreover, even if it were a genuine process, it would have been impossible to complete the impeachment process before CJI Misra retires in next few months (October, 2018). Then why move it? Just for politics?

However, politics should be confined to the Parliament House only. Politics should not be brought within the premises of the Supreme Court. It will take away the independence of the judiciary since judges would always be scared by potential impeachment notices if they pass decisions unfavourable to influential political parties. What you need is just 100 MPs in Lok Sabha or 50 MPs in Rajya Sabha to scare a judge.

[Note: This article is a slightly modified version of an answer given by me at Quora.]

About Dr. Ashok Dhamija

Dr. Ashok DhamijaDr. Ashok Dhamija is a New Delhi based Supreme Court Advocate, holds Ph.D. in Constitutional Law, is author of 3 law books, and is an ex-IPS officer. He is the founder of this law portal. Read more by clicking here. List of his articles. List of his Forum Replies. List of his Quora Answers.

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