(This is a guest post by Tejas Popat.)
Impeachment proceedings are not a routine in India. Rather, they are a matter of necessity in ensuring the continued trust of the people in the judiciary. As a result, in the 68 years of our constitutional history, only a handful of impeachment proceedings have been initiated.
On April 20th, the first against the Chief Justice, Dipak Misra was set in motion. However, the Rajya Sabha Chairman refused to admit the motion (Order of the Chairman). Only once before has such a motion been summarily rejected. This was in the motion against J.C. Shah J. when GS Dhillon was the Speaker of Lok Sabha. Acting on the counsel of the then Chief Justice M. Hidayatullah he dismissed the motion as ‘frivolous’ as it concerned some remarks made by Shah J. during a hearing against a certain OP Gupta. Without analysing the merits of each, such summary dismissals have wide ramifications. They raise questions on the powers the Chairman can exercise at such a nascent stage of an impeachment proceeding.
In this blog, I seek to analyse the scope and extent of this power to refuse to admit a motion under the Judges Inquiry Act, 1968 (hereinafter ‘the Act’) read along with the constitutional scheme. But, before I dwell on that aspect, I shall for sake of context set out the procedure for impeachment. Drawing from the procedure and after analysing the scope of the power, I conclude that in the case of Misra CJ., if challenged, this order of dismissal will not withstand any reasonable judicial scrutiny.
To clarify, I have used the term Chairman for ease of reference but, the same shall equally apply to the Speaker if proceedings are brought in the Lok Sabha.
Procedure of Impeachment
As Seervai explains (Vol. 3, pg. 2914), a successful impeachment motion goes through five stages.
- At the outset, requisite number of signatures are to be obtained on the notice of motion for presenting an address for the removal of the judge in either house of Parliament. S. 3(1) requires fifty members of the Rajya Sabha or one hundred members of the Lok Sabha to sign such a motion.
- After such a motion is presented to the Chairman, the S. 3(1) confers discretion to either admit or refuse to admit the motion. This decision is based on consultations the Chairman has or after he has gone through the materials before him (Notice of Motion and the documents which may have been submitted by the parliamentarians).
- If the motion is admitted, the Chairman under S. 3(2) is mandated to set up a committee ‘for the purpose of making an investigation into the grounds on which the removal of a Judge is prayed for.’ This involves the committee following the procedure set out in S. 3(3) to 3(9) of the Inquiry Act aided by the powers conferred on them under S. 5 (asking for discovery of documents, examination of witnesses etc.) to prepare its report. The hearing before the committee are of a judicial nature allowing the Judge to present his or her case.
- This stage involves the committee forwarding the report to the Chairman where the committee would have found the judge guilty or not of the charges framed. If the committee finds the judge not guilty, the proceedings come to an end as per S. 6(1). Otherwise, the motion which was till now with the Chairman is now forwarded with the report of the committee to the houses of the Parliament for voting on the motion.
- Voting on this motion has to be completed as provided in Art. 124(4). Upon such motion being passed in Parliament, S. 6(3) states that ‘the misbehaviour or incapacity of the Judge shall be deemed to have been proved’ and this motion and the result of voting is forwarded to the President for him to exercise his powers under Art. 124(4). The President concludes the process by passing an order for the removal of the Judge.
Thus, only after such a rigorous process comes to fruition, does a member of the higher judiciary lose his office. I shall now come to the proceedings initiated against the Chief Justice.
The motion against Misra CJ.
We now come to the order passed by the Chairman on April 23rd in refusing to admit the motion.
The scope of the Chairman’s power to admit such a motion is only found in S. 3(1) of the Act. Thus, any analysis of the sufficiency of the motion must also be circumscribed by the requirements of S. 3(1). It reads thus:
‘If notice is given of a motion for presenting an address to the President praying for the removal of a Judge signed,-
(a) in the case of a notice given in the House of the People, by not less than one hundred members of that House;
(b) in the case of a notice given in the Council of States, by not less, than fifty members of that Council,
then, 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 to admit the same.’
Now, the only explicit requirement provided in S. 3(1) is the numerical threshold of the signatures required. Thus, the Chairman must only assess whether this has been met. The instant case presents a great illustration. The motion submitted was signed by 71 members. However, in the meanwhile the 7 members had demitted office which led to the Chairman to find in the opening paragraph of the order that only 64 members could validly sign on the notice of motion. As reported, the members pointed this out to the Chairman but in any case, it presents a good example of how the powers which the Chairman may be limited to examining a procedural invalidity. In ¶ 4 he acknowledged that the requisite number of members had attested their signature and thus the requirement of S. 3(1) have been met. Therefore, ordinarily, the motion should have been admitted and he should have proceeded to put into motion the mandate of S. 3(2) viz. the constitution of the inquiry committee. But, that may not be the end of the debate.
It can be argued that some additional discretion may be vested in the Chairman vide S. 3(1) apart from merely considering the procedural validity of the motion. This lends itself not only from the words of S. 3(1) but also the fact that this power is made redundant if the job of the Chairman is merely to tally the numbers against the text of the Constitution. It is this discretion which would allow for consideration of the weight of evidence and the seriousness of allegations presented to him. Thus, what has to be determined the extent of this judicial power vested in the Chairman.
Here, it is relevant to consider the decisions in Mrs. Sarojini Ramaswami v. Union of India and M. Krishna Swami v. Union of India. The similarities between the two decisions are that Verma J. authored the majority opinion in both and they were also pronounced on the same date. But, on this specific point he contradicts himself. In the former he states that the Chairman forms the committee under S. 3(2) after forming a prima facie opinion (¶99). In the latter, he states that ‘the Chairman need not weigh the pros and cons to determine if there is a prima facie case. He merely has to act with a sense of responsibility which is guided by considerations of larger interest of the public administration of justice’ (¶44). Therefore, there is a need to determine a specific standard vis-à-vis the extent of the power and the scope of review by courts. A look at analogous situations where constitutional functionaries exercise adjudicative powers may help.
The Chairman has also been given a judicial power in the proviso to Art. 101(3). This is para materia to the proviso to Art. 190(3). Under this, the Chairman shall not accept the resignation of an M.P, ‘if from information received or otherwise and after making such inquiry as he thinks fit, the Speaker or the Chairman, as the case may be, is satisfied that such resignation is not voluntary or genuine.’ Commenting on Art. 190(3), the Chhattisgarh High Court noted, ‘Clause (b) of Article 190(3) gives an absolute right to the member of the House of the Legislature of the State to resign his seat. The only impediment in accepting the resignation is the enquiry which the Speaker/Chairman is bound to conduct. If no enquiry is conducted by the Speaker or the Chairman and the resignation is accepted, then the member of the House may challenge the act of the acceptance on the ground that the act of resigning was neither voluntary nor the resignation was genuine.’ The High Court thus seems to indicate that the scope of review by Courts is extremely limited. It is only when there is no enquiry which was conducted. By necessary implication, the Court will not interfere with the subjective satisfaction of the Chairman’s decision as long as the decision is based on some inquiry.
The standard the Chhattisgarh High Court seems to espouse the standard in the Bommai decision pertaining to the standard of satisfaction vis-à-vis the President under Art. 356. Before turning to the standard, we see if the same standard can be applied here. Though the Bommai standard was formulated in a different context but the standard is not specific to that context. The Bommai decision itself developed the standard from general administrative law principles (¶57) and therefore it cannot be restricted to Art. 356. Moreover, it has been applied to determinations made under Art. 123 or 213 as well in Krishna Kumar Singh (Sikri J. and Chandrachud J. agreed on this point thus forming the majority view) and Art. 72 in Epuru Sudhakar. Resultantly, the test in Bommai is not specific to the Emergency provisions but a general guidance on the manner in which discretion exercised by constitutional functionaries may be judicially tested. Now, coming to the test laid down in Bommai.
The Bommai ruling on this point can be dissected as follows. The President’s satisfaction is measured against four factors, first, the presence of material, second, whether the material is relevant, third, whether the material is sufficient, and fourth, whether inference drawn was legitimate. Now, the whole it may not be appropriate in the current context. As Chandrachud J. notes in his dissent in Krishna Kumar Singh by relying on Indra Swahney the level of scrutiny must depend on the subject matter and the nature of right affected (¶40). Thus, it would do well to recollect that the Bommai test is applied to a final determination and not a preliminary one like that of the Chairman given the five-stage impeachment process.
Keeping this in mind, the standard for reviewing a Chairman’s decision must, in my opinion, only involve a two-fold analysis. First, whether there was some material placed before the Chairman and second, the relevance of such material to the facts set out in the notice of motion. Thus, the Chairman would be justified in admitting a petition if these two grounds have been satisfied. Conversely, the burden on the Chairman is higher when he refuses to admit the motion. The standard to be met then is that there either exists no material or the material that exists is so spurious that the motion must be summarily rejected. The rationale for excluding the remaining two factors of the Bommai standard is that the proceedings before the inquiry committee are of a judicial nature. The charges against the Judge must be proved beyond reasonable doubt after examining the sufficiency and reliability of the evidence. Therefore, questions relating to burden and standard of proof are matters to be left for the members of the inquiry committee to decide.
The above formulation allows the Chairman some leeway in determining the admissibility of the motion on its substance as well. Evidently, this discretion is extremely limited, but, in the motion against Misra J. the Chairman started off on the wrong foot itself while scrutinizing the substantive allegations. In conducting his analysis, the Chairman as I shall elaborate now incorrectly sourced his power from Art. 124(4) and not S. 3(1). Not only that, the analysis based on the interpretation accorded to Art. 124(4) in this context was equally incorrect. Therefore, coming back to the order the Chairman.
Immediately after essentially conceding that the motion is admissible per S. 3(1), he begins ¶ 5 by stating, ‘I have carefully considered the question whether I should admit the motion submitted by the Hon’ble Members of Parliament or not, under Article 124(4) …. At the stage of admission, I have to apply a test that if every statement stated in the petition is believed to be true, would it still amount to a case of “proved misbehaviour” within the scope of Article 124(4).’
In the following few paragraphs he elaborates on the lengthy discussions he undertook before deciding this motion which are not of any immediate concern. After that, in ¶ 10, carrying forward what he stated in ¶ 5, he begins an analysis whether this motion can be admitted under Art. 124(4). This is erroneous on multiple counts.
First, Art. 124(4) does not even govern the role of the Chairman with regard to such a notice of motion. It confers an exclusive power on the President to remove the Judge from office by passing an order to that effect. This power is exercised after the procedure under Art. 124(4) has been complied with viz. misbehaviour or incapacity has been proved and the requisite address in each house of the Parliament has been passed to request the President to pass an order for removal of the Judge (See, Rule 16 of Judges (Inquiry) Rules, 1969 elaborating the detailed procedure for the adoption and passing of such an address and subsequently Rule 17 mandating that such an address to be presented to the President). Thus, the Chairman could not have even relied on Art. 124(4) to determine the issue of admissibility.
Second, assuming the Chairman can proceed to determine the motion in terms of Art. 124(4) he provides rather modest reasoning to support this. He states that, ‘the prefix ‘proved’ places an obligation of actually proving the misbehaviour before the Parliamentary Procedure for removal of a Judge can come into play.’ In support of this conclusion, he cited the decision of the Supreme Court in In Re. Mehar Singh Saini.
At the outset, the case did not deal with Art. 124(4) but Art. 317. Thus, the statement is a passing observation without the binding effect given to Supreme Court decisions under Art. 141. Second, this statement was made in order to distinguish the nature of the provision under Art. 124(4) and Art. 317 when the latter employs the word ‘misbehaviour’ and the former requires proved misbehaviour (¶ 74, (2010) 13 SCC 627). Thus, the decision is hardly of help.
Regardless of the above reservations, if we assume the authority to be of some assistance, such a conclusion contradicts the test that must be applied. Further, it not only contradicts the entire constitutional and statutory scheme but also jeopardises the purpose of having an inquiry committee to determine the guilt of the judge (See, S. 3(2)). While the latter is self-explanatory, I will now elaborate on the former.
The first instance in which the words ‘misbehaviour or incapacity’ are preceded by the word ‘proved’ is Art. 124(4). As I stated earlier, this is the provision which vests the authority in the President to issue an order which culminates the impeachment process viz. the fifth stage in the proceeding as Seervai explains it. None of the statutory or constitutional provisions dealing with any of the four preceding stages even mention the word ‘proved’ in the context of misbehaviour or incapacity (See as illustrations S. 3(1), 3(5), 3(6), 3(7) 6(1), 6(2) of the Act and the Inquiry Rules). The reason for this can be ascertained if we refer to S. 6(2) and 6(3) of the Act.
S. 6(2) states, ‘If the report of the Committee contains a finding that the Judge is guilty of any misbehaviour or suffers from any incapacity, then, the motion … referred to in sub-section (1) of section 3 shall together with the report of the Committee, be taken up for consideration by the House or the Houses of Parliament in which it is pending.’
Thereafter, S. 6(3) states, ‘if the motion is adopted by each House of Parliament in accordance with the provisions of clause (4) of article 124 … then, the misbehaviour or incapacity of the Judge shall be deemed to have been proved.’
Thus, only upon a finding of guilt by the inquiry committee and the parliamentary approval does any misbehaviour or incapacity stand ‘proved’ for the power under Art. 124(4) be exercisable. This is enabled by the deeming provision in S. 6(3). Thus, Only at such time when the charges have been proved, does the President get the authority to remove the Judge from office. At any stage before this, there are merely charges of misbehaviour or incapacity which have to be proved. This is evident from the fact that the elaborate judicial process is conducted by the inquiry committee. It frames the charges, allows for examination of witnesses and allows for the judge to be represented by a counsel (See, S. 4 and 5 of the Act). Furthermore, S. 3(2) makes this explicit when it states, ‘If the motion referred to in sub-section (1) is admitted, the Speaker or, as the case may be, the Chairman shall keep the motion pending and constitute, as soon as may be, for the purpose of making an investigation into the grounds on which the removal of a Judge is prayed for …’ Thus, the burden of investigation and proving of charges is solely vested in the inquiry committee.
As Seervai notes:
‘In the context of s. 3(3) and s. 3(4) of the Inquiry Act the word “proved” can only mean that in presenting the notice of motion to the Speaker or to the Chairman that not less than 100 Members of the Lok Sabha or 50 Members of the Rajya Sabha believe that when oral and/or documentary evidence is led before the Committee constituted under s. 3(3) of the Inquiry Act, the allegation made in the notice of motion the Judge would be proved…. When after a full judicial inquiry prescribed by s. 3(3) and (4) the Committee finds the Judge concerned guilty of one or more or all the charges framed against him, the word “proved” is used in its ordinary sense, for the truth of the guilt of the Judge has been established by oral and/or documentary evidence and the Report to be sent to the Speaker would say so.’ (Vol. 3, pg. 2920)
Thus, it would be unreasonable to prove the charges as a precondition to merely admit the motion. It was on such an erroneous assumption that the Chairman proceeded to analyse the allegations terming them as a ‘mere suspicion, a conjecture or an assumption’. He concludes in ¶ 15 as follows: ‘I have applied my mind to each of the five charges as made out in the Motion. I have examined all the documents annexed to the motion. I am of the clear opinion that all the facts, as stated in the motion, read with the context of the annexed documents, do not make out a case under Article 124(4) of the Constitution which can lead to any reasonable mind to conclude that the Chief Justice of India on these facts can ever be held guilty of “misbehaviour”’
Not only did the Chairman proceed on an erroneous basis, his analysis seems to have far exceed the level of scrutiny which may be made at this stage of the proceeding. Thus, if challenged, this order of the Chairman may find it difficult to be legally sustainable.
The author would like to thank Mr. Agnidipto Tarafder for his timely encouragement. He would also like to thank the Editor of the Blog, Ms. Aishwarya Gupta and Mr. Rishabh Mohnot for their comments and suggestions on the earlier drafts of this blog. The author can be reached at email@example.com.