By Biswaraj Patnaik in Puri, April 21, 2018: For sure, Supreme Court Chief Justice Dipak Misra is in trouble, no matter how flimsy the charges by the accusing law makers. It is also true; impeaching a superior judge is one of the toughest things to achieve as the procedure is complicated.

But the disturbing news is that do the first time in India, in an unprecedented move, highest level law makers have moved the impeachment motion against a Chief Justice of India (CJI). The incumbent CJI is an Odia luminary.

Incidentally, Odisha has produced three CJIs of India. The first one- Justice Ranganath Misra Justice Dipak’s paternal uncle completed his tenure but walked out of office with a bad reputation of having been ‘not above board’. He also got the lofty post not because of super merit or seniority, but by default due to the sudden death of the incumbent CJI Sabyasachi Mukherjee at a London airport while returning from an event in the USA.

The second one – Justice Gopal Ballabh Patnaik was CJI for just under a month by virtue of bland seniority and nothing else. Before he was registered as the CJI in the minds of the masses, he was gone.
The third one – the present CJI has come up the hard way. He has served for long, had the merit and seniority, and climes into the slot routinely. Most unfortunately, he was projected as a controversial judicial person by several members of the legal community including fellow judges and top lawyers of the country for having committed some land grab fraud and arbitrarily allocating cases to favoured few in the Supreme Court by way of being the Master of the Roster.

Article 124 (4) of Constitution of India lays down the procedure for removal of a Judge of Supreme Court which is applicable to Chief Justice as well. Once appointed, the Chief Justice remains in office until the age of 65 years whichever is earlier. He can be removed only through a process of impeachment by Parliament as follows:

A Judge of the Supreme Court shall not be removed from his office except by an order of the President passed after an address 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 has been presented to the President in the same session for such removal on the ground of proved misbehaviour or incapacity.

Chief Justice of India Dipak       Mishra

The Congress-led opposition’s move to impeach Justice Misra is not likely to actually achieve the purpose of removing him from his post. But it will, in all likelihood, achieve a symbolic victory.

While the opposition simply doesn’t have the numbers and the CJI has the government firmly in his corner, there are many, both within and outside the judicial system, who feel CJI Misra’s position has become untenable.

Now that after months of dilly-dallying, the opposition has finally gone ahead and submitted the motion to Vice-President M. Venkaiah Naidu, who is also Chairman of the Rajya Sabha, here are answers to some possible issues and questions that will arise in the near future.

The motion of impeachment is not likely to succeed. Unless the BJP comes on board and supports the motion — the chances of that happening seem bleak as of now, the motion can’t be passed by the required majority so as to ensure the removal from office of Misra. An impeachment motion against a judge of the Supreme Court or any high court has to be passed by both Houses of Parliament by a majority of two-thirds of the members present and voting, with at least half the strength of each House participating in the vote.

As of today, the parties that are signatories to the motion and others like National Conference that don’t have any MP in the Rajya Sabha but will vote for the motion in the Lok Sabha, are nowhere near even the simple majority mark, forget a two-thirds majority.

As for today, those who could vote for the motion like Congress, NCP, etc, have 77 MPs in Lok Sabha, which has 540 MPs currently, and 79 in Rajya Sabha, which has a voting strength of 244. Two-thirds in each house means 360 in Lok Sabha and 163 in the House of Elders. The numbers are clearly tilted towards the motion being defeated. The possibility of this happening also looks bleak since the Rajya Sabha Chairman, who has the discretion to accept or reject the motion for impeachment, may decide not to admit it.

The Congress leadership seems to think that this is the likely course and hence is ready with Plan-B: to challenge the Chairman’s decision in court. However, with CJI Misra scheduled to retire on October 1, any decision to allow the motion may come a bit late for the actual voting to happen.

Since the case would pertain to the sitting CJI, any possible writ against the order of the Chairman to reject the motion can’t be heard by a bench of which the CJI himself is a part. Ideally, the matter would then go to another bench to be headed by the second senior-most judge – Jasti Chelameswar. But, here is where the problem lies: Justice Chelameswar was one of the four top judges of the apex court to come out and hold a press conference against the conduct of CJI Misra.

Therefore, the possibility of him hearing the case is also bleak. Ditto for the next three in order of seniority — Justices Ranjan Gogoi, Kurain Joseph and Madan Lokur, who were also present at the presser. Moreover, since the matter involves the CJI, who is the master of the roster, who would, in his absence, take a call on which bench will hear the plea?

The position of the CJI is by now shaken up badly and is nearly untenable. Ideally, the opposition taking the unprecedented step of moving an impeachment motion against him, his position has become extremely weak and virtually dysfunctional. The best course, for him is to proceed on leave or at least stop dealing with judicial work now that there is a serious question mark over is working.

But, he is not likely to be so pliable and give in so easily. In the past, whenever high court judges have faced impeachment, in most cases, their work was withdrawn and they were made to sit idle awaiting the outcome of the impeachment motion. But, with the BJP-led government clearly supporting CJI Misra, he may actually be advised against proceeding on leave or not holding court.

Members of the probe committee:

If, and it is a big if, the motion is accepted, the RS Chairman has to constitute a committee to probe the charges against the CJI. As per the Judges (Inquiry) Act, 1968, in case of judges, the committee consists of a Supreme Court judge, a high court chief justice and a distinguished jurist. While there are some who feel that since this is the first time that such a motion has been moved against the CJI, there is no clarity as to who will be members of the panel to probe the charges against the CJI, the position is erroneous. For Section 2 (C) of the Judges (Inquiry) Act, 1968 also defines judge as “a Judge of the Supreme Court or of a High Court and includes the Chief Justice of India and the Chief Justice of a High Court”

Outcome of impeachment if at all:

In case, CJI Misra is actually impeached before 23 June, the possibility of which happening hovers between bleak to impossible; he will be replaced by Justice Chelameswar. However, in case, the impeachment happens after 23 June, Justice Ranjan Gogoi, who is otherwise also next in line to succeed CJI Misra, will become CJI, though for a longer tenure.