Opinion: Why is the impeachment saga an opportunity in disguise?

New Delhi, Delhi, India Apr 26, 2018, 05.46 PM(IST) Written By: Krishna Kumar

File photo: Supreme Court of India. Photograph:( Zee News Network )

"In the middle of difficulties, lies opportunity", said Albert Einstein. 
 
Each tragedy leaves the hint of a comedy yet to be unfolded, each misfortune comes seeded in felicity yet to be born. In the same way, the latest action of the opposition parties to impeach the Chief Justice of India (CJI) and the subsequent developments, no matter how "unfortunate and mischievous" they may be, have the potential to open up and settle many academic debates that would eventually go to strengthen the constitutional jurisprudence in India once the ominous dust kicked up around the matter is settled. The issue, although denting the image of the judiciary in an unfathomable way, is nothing less than a seed falling on the fertile ground.
 
In the evolutionary process of society, each event has its significance. In the ontological argument, the question whether the opposition should have initiated a motion of impeachment against the CJI, and whether the Chairman of the Rajya Sabha should have shot it down on his own, both carry equal significance.

To the students of constitutional law, the development leads to a rich mine of potentialities where the outcome is likely to put forth a windfall of lessons that would help in setting definite regulations and precedents in areas that hitherto suffer from constitutional uncertainties.

Let’s talk on the motion of removal of the CJI, which is popularly known as 'impeachment motion' in media, though the word 'impeachment' comes with specific reference to President of India under Article 61 of the Constitution for judges of the Supreme Court, Article 124(4) of the Constitution mentions the word 'removal' instead of impeachment.

The motion of removal of the CJI, as submitted to Rajya Sabha by Ghulam Nabi Azad last Friday containing signatures of 71 Members of Parliament of Rajya Sabha (7 have retired now) from the Congress and 6 other parties, contained 5 'grounds of misbehaviour', hence the opposition pitched the case to the Chairman of Rajya Sabha for removal of the CJI.
 
However, on Monday, Venkaiah Naidu, the Chairman of the Rajya Sabha, drew the curtain on the motion by rejecting it altogether. While doing so he had observed - "Members of Parliament who have presented the petition are unsure of their own case... the phrases used by the Hon'ble MPs themselves indicate a mere suspicion, a conjecture or an assumption. The same certainly does not constitute 'proof beyond reasonable doubt', which is required to make out a case of 'proved misbehaviour' under Article 124 (4)… I am also aware it is imperative that we should have extraordinary, important and substantial grounds for the removal of a judge.” (Italics added)
 
Though the Congress found the decision "ill-conceived and hasty", the decision of the Chairman stands in complete conformity with the existing law. In a series of cases, the courts have taken this position that the Speaker/Chairman is the final authority to decide whether the accusation against a judge of the Supreme Court requires investigation before consideration of his removal proposal by the Parliament. Section 3(1) of the Judges Inquiry Act, 1968 provides for the admission of such motion by the Speaker or the Chairman and subsequent action on it.

In Sarojini Ramaswami Vs Union of India (1992), the SC had set the guidelines in unambiguous terms: "Every Judge of the Supreme Court and the High Courts on his appointment is irremovable from office during his tenure except in the manner provided in clauses (4) and (5) of Article 124 of the Constitution of India.

The law made by the Parliament under Article 124(5), namely, the Judges (Inquiry) Act, 1968 and the Judges (Inquiry) Rules, 1969 framed thereunder provides that… the Speaker/Chairman is to decide whether the accusation requires investigation. If he chooses not to act on the accusation made in the form of the motion by the specified minimum number of Members of Parliament, the matter ends there." This position has been reiterated in a series of judgments, the most recent being Justice PD Dinakaran vs Hon'Ble Judges Inquiry Committee (July 2011).

Incidentally, Justice S. Ramaswami was the first judge against whom a motion of removal was initiated in the Parliament and during the investigation on the corruption charges against him, 10 out of 14 charges were found to be true by the inquiry committee.

However, despite concrete evidences of corruption and misuse of power against justice Ramaswami, Kapil Sibal, assisted by JS Khehar, who was then an advocate in the Punjab & Haryana High Court and who later became the 44th CJI of India, put up a 5-hour long spirited defence of Ramaswami as his counsel in the Parliament on May 10, 1993 and ensured that the impeachment motion failed in the House.

Whereas the Kapil Sibal of 1993 hated the idea of impeaching a judge with proven misbehavior, the Kapil Sibal of 2018 is hell-bent on impeaching a judge by inventing and imputing misbehavior to him. Chief Justice Dinakaran of Sikkim High Court, on the other hand, saved himself from the ignominy by resigning from his post in 2011.

The present episode leaves open many questions.

The opposition says that the CJI is guilty of misbehavior while the Vice-President says there is no proof prima facie. In such a scenario, the first and foremost question is, what constitutes "standard of proof"?

In common law jurisdictions, the standard of proof is nothing but clear and convincing evidence that happen to be beyond reasonable doubt and carry a level of certainty around them. However, the 'preponderance of probabilities' may also constitute a standard of proof. 

In various decisions of the Supreme Court, such as in Dr. NG Dastane v. Mrs. S Dastane (AIR 1975 Supreme Court 1534), it was held that the Court can "act on the preponderance of probabilities and arrive at a conclusion, and need not expect that all the conditions prescribed are to be satisfied beyond a reasonable doubt."

So, while Naidu believes 'suspicion, conjecture and assumption' have no role to play in establishing proof beyond reasonable doubt, will preponderance of probabilities, if any, play a role in framing a jigsaw fit of charges from the 5 grounds of misbehavior listed against the CJI, once the matter reaches the court?
 
Secondly, can the Chief Justice of India be considered as an institution of trust himself?
 
The question was settled by a Supreme Court bench led by the CJI Deepak Mishra himself when it rejected a petition on April 11th this year filed by a Lucknow-based lawyer Ashok Pandey who sought a writ of Mandamus to "evolve a procedure for constituting benches and allotment of jurisdiction to different benches".

Quoting an earlier judgment of the State of Rajasthan Vs Prakash Chand (1998) and also a recent judgment of a Constitution Bench in Campaign for Judicial Accountability and Reforms v Union of India (2018), the CJI-led bench affirmed that the Chief Justice of India is the undisputed master of roasters. Writing the judgment, Justice Chandrachud had opined, "as a repository of constitutional trust, the Chief Justice is an institution of trust in himself."

The judgment implies there should be no occasion to deny the trust reposed in the CJI and hence he should be constitutionally trusted. However, with the opposition attacking on this very ‘repository of constitutional trust’, the question remains whether the repository of constitutional trust vested in the Chief Justice is absolute or is still open to judicial scrutiny?

The third question is whether this legislative decision of Venkaiah Naidu to reject the motion of removal of the CJI is subject to judicial review?

The settled position of law is that conducting businesses of the House, such as admitting or rejecting a motion, including a removal motion under Art 124(4), which is no different from any other motion under rules and procedures of Rajya Sabha under Art 118, is an exclusive right of the Chairman, and hence the courts can’t interfere in his legislative right. However, after the historic Keshvanand Bharti Vs State of Kerala case (1973) decision, where it was famously settled that Parliament can’t interfere with the 'basic structures' of the Constitution, the Congress can cling on to the thin argument that 'independence of judiciary', which certainly is a basic structure of the constitution, stands today in peril hence the Supreme Court must step in and review the decision of the Chairman.
 
The three important questions raised above can finally and comprehensively be answered once the matter reaches to the doorsteps of the Supreme Court. To the Congress, the battle is electoral, guided by its political insinuations, hence the party is certain to take the issue to the Supreme Court.

However, from a value-neutral perspective, the episode presents an excellent opportunity to the constitutional institutions to fix the matter by plugging those nagging gaps in procedures and set definite precedents to avoid recurrence of similar situations in future. That's why the episode is nothing less than an opportunity in disguise.

(Disclaimer: The opinions expressed above are the personal views of the author and do not reflect the views of ZMCL)

Krishna Kumar

Krishna Kumar, an author and a novelist, works with the CSIR in the rank of Under Secretary. His latest conspiracy thriller, "The New Delhi Conspiracy", co-authored with Meenakshi Lekhi, MP, is now on the stands