It’s unexpected that parliamentarians and seasoned lawyers have questioned the right of Rajya Sabha Chairman to keep his statement at the admission stage to remove the CJI Dipak Misra

The decision of Venkaiah Naidu, the Vice President and Chairman of the Rajya Sabha, to reject the notice for impeachment of Chief Justice Dipak Misra, has been questioned by the Congress and some others who were signatories to the petition. A news agency report claimed that the Congress had “lashed out” at the Chairman for passing such an “illegal order”. Sitaram Yechury, the General Secretary of the Communist Party of India (Marxist) was quoted as saying that the Chairman “does not have the discretion to independently decide about the validity of the motion”. Kapil Sibal of the Congress claimed that “never before in India’s history” had a motion moved by MPs been dismissed at the preliminary stage”.

While the aggrieved MPs are entitled to question the Chairman’s decision, some of the claims made by them — that the law does not permit rejection of the notice at the preliminary stage and that this has never happened before — are wholly incorrect.

The argument that the law does not permit the Chairman, Rajya Sabha, to apply his mind and take a call on whether or not to admit the motion of impeachment, is absolutely false. Section 3 of the Judges (Inquiry) Act, 1968, clearly states that “the Speaker or, as the case may be, the Chairman may, after consulting such persons, if any, as he thinks fit and after considering such materials, if any, as may be available to him, either admit the motion or refuse the admit the same”. Therefore, there can be no ambiguity whatsoever in regard to the power of the Chairman to reject the motion at the preliminary stage.

Second, as regards precedents, the very first petition filed in the Lok Sabha after the Judges (Inquiry) Act came into being was rejected by Speaker GS Dhillon in 1970, when the Congress was in power at the Centre. The Speaker found the petition against Justice JC Shah of the Supreme Court, signed by 199 MPs to be ‘frivolous” and also ensured that nothing was brought on record in regard to the allegations against the judge.

Further, the arguments advanced by the Congress at this juncture are indeed strange because it was this very party which did not support the impeachment motion against Justice Ramaswami of the Supreme Court. As against the vague, “may be, may not be” averments against the present Chief Justice, the motion against Justice V Ramaswami of the Supreme Court in 1993, was loaded with grave charges of an unprecedented nature. The Inquiry Committee comprising three judges, which probed the charges, held him guilty of “willful and gross misuse of office…… moral turpitude and bringing dishonor to the judiciary”. The Congress did not support the impeachment motion against such a judge and his lawyer and chief defender at that time was Kapil Sibal.

Finally, when one examines the history of the Judges (Inquiry) Bill, which was first mooted in 1964, one realises that some of the best legal minds in the country at that time were strongly in favour of the Speaker or Chairman taking a call on admissibility of a notice of impeachment.

The Government referred the Bill to a joint committee of Parliament. Many eminent jurists and parliamentary experts, including MN Kaul, former Secretary-General of the Lok Sabha and co-author of the most authoritative text on the practice and procedure in Parliament, CK Daphtary, the then Attorney General of India, MC Setalvad, LM Singhvi, MC Chatterjee, GS Pathak, PN Sapru and KK Shah appeared before this committee in 1966. Following the committee’s report, the Government amended the proposed legislation and it was finally passed in 1968. The deliberations of this committee, the opinion tendered by experts before it and the final recommendations are illuminating and relevant to the issue at hand.

MN Kaul, categorically told the committee that whenever a complaint is lodged against a judge, “it is necessary for the Speaker/Chairman to consider whether any prima facie case is made out”.  He told the committee that Meghnad Saha, an eminent scientist, lodged a complaint against a judge leading to the first case of this kind after the Constitution came into being. The notice was sent to Speaker Mavalankar who felt that “it was necessary to first find out if there was a prima facie case to admit the notice”. Kaul recalled Mavalankar’s conversation with the complainant.

What the Speaker told Saha that day over six decades ago has great relevance even today and has a bearing on the present case vis-à-vis the Rajya Sabha Chairman’s approach to the notice against Chief Justice Misra.

According to Kaul, this is what Speaker Mavalankar told the complainant: “Look here, you have given notice; you are an eminent member and I know that you may have some prima facie evidence, but it is my duty as a Speaker, to satisfy myself…initially it is my power and responsibility to admit it or not to admit it. I think I should view it with an extremely critical eye; that is to say if I have no recourse left, then in those circumstances alone I will place this on the order paper”. Kaul told the committee that that it was incumbent on the Speaker “to check and verify the allegations initially”. He said the Home Minister, the Chief Justice and Prime Minister Jawaharlal Nehru supported what the Speaker did.

Kaul was absolutely certain that the Speaker could admit the motion only if he found a prima facie case. Also, that the Speaker could dismiss the motion “if it was frivolous”. He categorically stated that “No Member of Parliament should think that when he moves a motion, the charges are proved. He has only started the machinery to go into action. At that stage if the member does not satisfy the Speaker about a prima facie case, the Speaker may say that he is not satisfied or that there is no basis”. KK Shah told the committee that “there should be no character assassination before proof”.  MC Setalvad, another eminent jurist, told the committee that discussion about the conduct of the judge must be avoided at the initial stage.

After hearing all these experts, the joint committee of Parliament decided that when a notice is given, the Speaker or Chairman may consult such persons as he deems fit and also gather material and eventually “either admit or reject the motion”. This opinion of the joint committee stands incorporated in Section 3 of the Judges (Inquiry) Act, which is in vogue today.

It is, therefore, surprising to hear seasoned lawyers and parliamentarians question the right of the Chairman to apply his mind at the admission stage.

Writer: A Surya prakash

Courtesy: The Pioneer

It’s unexpected that parliamentarians and seasoned lawyers have questioned the right of Rajya Sabha Chairman to keep his statement at the admission stage to remove the CJI Dipak Misra

The decision of Venkaiah Naidu, the Vice President and Chairman of the Rajya Sabha, to reject the notice for impeachment of Chief Justice Dipak Misra, has been questioned by the Congress and some others who were signatories to the petition. A news agency report claimed that the Congress had “lashed out” at the Chairman for passing such an “illegal order”. Sitaram Yechury, the General Secretary of the Communist Party of India (Marxist) was quoted as saying that the Chairman “does not have the discretion to independently decide about the validity of the motion”. Kapil Sibal of the Congress claimed that “never before in India’s history” had a motion moved by MPs been dismissed at the preliminary stage”.

While the aggrieved MPs are entitled to question the Chairman’s decision, some of the claims made by them — that the law does not permit rejection of the notice at the preliminary stage and that this has never happened before — are wholly incorrect.

The argument that the law does not permit the Chairman, Rajya Sabha, to apply his mind and take a call on whether or not to admit the motion of impeachment, is absolutely false. Section 3 of the Judges (Inquiry) Act, 1968, clearly states that “the Speaker or, as the case may be, the Chairman may, after consulting such persons, if any, as he thinks fit and after considering such materials, if any, as may be available to him, either admit the motion or refuse the admit the same”. Therefore, there can be no ambiguity whatsoever in regard to the power of the Chairman to reject the motion at the preliminary stage.

Second, as regards precedents, the very first petition filed in the Lok Sabha after the Judges (Inquiry) Act came into being was rejected by Speaker GS Dhillon in 1970, when the Congress was in power at the Centre. The Speaker found the petition against Justice JC Shah of the Supreme Court, signed by 199 MPs to be ‘frivolous” and also ensured that nothing was brought on record in regard to the allegations against the judge.

Further, the arguments advanced by the Congress at this juncture are indeed strange because it was this very party which did not support the impeachment motion against Justice Ramaswami of the Supreme Court. As against the vague, “may be, may not be” averments against the present Chief Justice, the motion against Justice V Ramaswami of the Supreme Court in 1993, was loaded with grave charges of an unprecedented nature. The Inquiry Committee comprising three judges, which probed the charges, held him guilty of “willful and gross misuse of office…… moral turpitude and bringing dishonor to the judiciary”. The Congress did not support the impeachment motion against such a judge and his lawyer and chief defender at that time was Kapil Sibal.

Finally, when one examines the history of the Judges (Inquiry) Bill, which was first mooted in 1964, one realises that some of the best legal minds in the country at that time were strongly in favour of the Speaker or Chairman taking a call on admissibility of a notice of impeachment.

The Government referred the Bill to a joint committee of Parliament. Many eminent jurists and parliamentary experts, including MN Kaul, former Secretary-General of the Lok Sabha and co-author of the most authoritative text on the practice and procedure in Parliament, CK Daphtary, the then Attorney General of India, MC Setalvad, LM Singhvi, MC Chatterjee, GS Pathak, PN Sapru and KK Shah appeared before this committee in 1966. Following the committee’s report, the Government amended the proposed legislation and it was finally passed in 1968. The deliberations of this committee, the opinion tendered by experts before it and the final recommendations are illuminating and relevant to the issue at hand.

MN Kaul, categorically told the committee that whenever a complaint is lodged against a judge, “it is necessary for the Speaker/Chairman to consider whether any prima facie case is made out”.  He told the committee that Meghnad Saha, an eminent scientist, lodged a complaint against a judge leading to the first case of this kind after the Constitution came into being. The notice was sent to Speaker Mavalankar who felt that “it was necessary to first find out if there was a prima facie case to admit the notice”. Kaul recalled Mavalankar’s conversation with the complainant.

What the Speaker told Saha that day over six decades ago has great relevance even today and has a bearing on the present case vis-à-vis the Rajya Sabha Chairman’s approach to the notice against Chief Justice Misra.

According to Kaul, this is what Speaker Mavalankar told the complainant: “Look here, you have given notice; you are an eminent member and I know that you may have some prima facie evidence, but it is my duty as a Speaker, to satisfy myself…initially it is my power and responsibility to admit it or not to admit it. I think I should view it with an extremely critical eye; that is to say if I have no recourse left, then in those circumstances alone I will place this on the order paper”. Kaul told the committee that that it was incumbent on the Speaker “to check and verify the allegations initially”. He said the Home Minister, the Chief Justice and Prime Minister Jawaharlal Nehru supported what the Speaker did.

Kaul was absolutely certain that the Speaker could admit the motion only if he found a prima facie case. Also, that the Speaker could dismiss the motion “if it was frivolous”. He categorically stated that “No Member of Parliament should think that when he moves a motion, the charges are proved. He has only started the machinery to go into action. At that stage if the member does not satisfy the Speaker about a prima facie case, the Speaker may say that he is not satisfied or that there is no basis”. KK Shah told the committee that “there should be no character assassination before proof”.  MC Setalvad, another eminent jurist, told the committee that discussion about the conduct of the judge must be avoided at the initial stage.

After hearing all these experts, the joint committee of Parliament decided that when a notice is given, the Speaker or Chairman may consult such persons as he deems fit and also gather material and eventually “either admit or reject the motion”. This opinion of the joint committee stands incorporated in Section 3 of the Judges (Inquiry) Act, which is in vogue today.

It is, therefore, surprising to hear seasoned lawyers and parliamentarians question the right of the Chairman to apply his mind at the admission stage.

Writer: A Surya prakash

Courtesy: The Pioneer