Impeachment: Venkaiah Naidu sets an even more dangerous precedent

The requisition to impeach CJI Dipak Misra was to my mind grossly misconceived and set a dangerous precedent for the future of an independent judiciary in democratic India. The rejection of the motion itself by the Rajya Sabha chairman without any examination by a judicial committee sets an even more dangerous precedent.

The Constitution provides for impeachment of a judge of the Constitutional Courts, “on the ground of proved misbehaviour or incapacity.” These are not words to be taken lightly. The Supreme Court, reading a proposed impeachment motion, in the CK Daphtary v O P Gupta case, ruled that even if “a Judge has committed errors, even gross errors, (it) cannot amount to ‘misbehaviour’”.

In other words, a judge of the constitutional courts, is entitled to be wrong, or mistaken, and is protected from removal for ordinary errors of judgment. He can be removed by the impeachment process only if he is incapacitated or his ‘misbehaviour’ is of a variety that ought to debar him from judicial office.

While it may be relatively easy to collect the necessary signatures to begin the process of impeachment, the process thereafter has never culminated in an actual removal from office. When faced with a situation, where impeachment appears a certainty, the judge concerned has chosen to resign, rather than go through the entire ignominy.

But in Dipak Misra’s case, matters were unlikely to even reach the floor of Parliament, since he is anyway scheduled to retire in October this year. An impeachment motion, if admitted, had to be inquired into by a committee of judges, who need to submit a report before the actual motion of removal can be debated by Parliament. It was extremely unlikely that the entire process could have been completed within the six months that remain of his term.

Why then did the opposition parties, put the judiciary and the country in a position, where a cloud hung over the office, the incumbent and his decisions? Have his judicial or administrative decisions been so grossly wrong, or his personal conduct been such as to warrant a finding of “proved misbehaviour”?

The charges set out in the requisition are grave, but certainly not clinching, in the public imagination. Some of them may be discernible to legally trained minds, but by and large fail to excite a level of public outrage that justifies a motion to impeach.

The process of impeachment is political no doubt, but the politics of the situation must warrant a measure of public support before any motion is brought. In the case of Justice Soumitra Sen of Calcutta, it was the then Chief Justice who recommended impeachment. In the case of Justice PD Dinakaran, the collegium that had earlier recommended his elevation to the Supreme Court, withdrew it and ordered his transfer to the Sikkim High Court. In the case of Justice V Ramaswami, impeachment proceedings were moved only after the Supreme Court Bar Association passed a resolution calling for his impeachment. No such event of public disapprobation had occurred in Justice Dipak Misra’s case.

Over the past few months, threats of bringing about an impeachment motion had been muttered by various lawyers with political affiliations or activist leanings. These threats were also denied by Congressmen like Mr Mallikarjun Kharge.

At the same time, Justice Misra’s manner of conducting court remained unchanged. He went on hearing matters that had political consequences. He refused to adjourn the appeals in the Ayodhya case. He heard and disposed of the petition for an investigation into the death of Judge Loya. One may disagree with the outcome of his decisions, but we cannot fault a Chief Justice who wants to dispose of matters from courts that are perpetually clogged. Whatever else one may say of him, there is no doubt that Dipak Misra is a glutton for work, who has even sat in court on Saturdays or at midnight, if the case required a hearing.

In this backdrop, bringing about a requisition to impeach, simply because you had the requisite number of signatures to initiate the process, is quite simply an exercise that could be dismissed, as motivated by politics alone. The public at large had neither been explained the reasons for the necessity of impeachment, nor has any non-political body, like the judiciary itself or a bar association called for an impeachment. The threshold for “impeachable” offences had in my opinion not been breached.

The message sent out by the rejection

What the requisition and its rejection have done however, is to send a message to the political world, that judges can be sought to be cowed down by the threat of such a motion. In the language of social media, a judge can be “trolled” into silence by a group of parliamentarians willing to sign a motion for impeachment.

Equally, the other dangerous message from the VP’s dismissal of the motion, is that a judge can be “protected” from parliamentary wrath. Such messages weaken both the legislature, as well as the judiciary. There will be future governments and parties in opposition, that may rely on these precedents when faced with inconvenient judgments of any judge.

Way back in 1923, the acting Chief Justice of Bombay, Justice LA Shah had warned “the confidence of the public in Courts rests mainly upon the purity and correctness of their pronouncements and that such confidence is not lightly shaken by a mistake or unfair criticism of this kind.

At the same time it is clear that the tendency of such criticism is to undermine the dignity of the Court and in the end to embarrass the administration of justice. The faith of the public in the fairness and incorruptibility of Judges is a matter of great importance.”

In a similar vein, Justice Sandra Day O’Connor of the U S Supreme Court, once wrote that “a great many people have forgotten that the framers of our Constitution went to such great effort to create an independent judicial branch that would not be subject to retaliation by either the executive branch or the legislative branch because of some decision made by those judges.”

The present moves on both sides, smack more of retaliation and resistance, than of carefully considered resolution. An unguided Brahmastra of impeachment, unjustly hurled in momentary pique can rebound on the defender.

The author is a lawyer and history buff. The opinions expressed are his own