By Amritananda Chakravorty
In an unprecedent move, the opposition parties, led by the Congress, are planning to introduce a resolution calling for impeachment of the Chief Justice of India, Dipak Mishra (‘CJI’). A draft resolution was circulated last week, which requires a minimum signatures of 50 Rajya Sabha MPs or 100 Lok Sabha MPs, as per the Judges Inquiry Act, 1968. It is said that the move was necessiated, owing to the CJI’s inability to handle the judicial crisis within, as evident from the press conference of the four senior most judges on 12th January, 2018.
As per the resolution, the following main allegations are levelled against the CJI:
Firstly, the facts and circumstances relating to the Prasad Education Trust case, show prima facie evidence suggesting that Chief Justice Dipak Mishra may have been involved in the conspiracy of paying illegal gratification in the case, which at least warrants a thorough investigation.
Secondly, the Chief Justice Dipak Mishra dealt on the administrative as well as judicial side, with a writ petition, which sought an investigation into a matter in which he too was likely to fall within the scope of investigation, since he had presided over the bench, which had dealt with this case, and passed order in the case of Prasad Education Trust and thus violated the first principle of the Code of Conduct for Judges.
Thirdly, the Chief Justice Dipak Mishra has abused his administrative authority as master of roster to arbitrarily assign individual cases of particular advocates in important politically sensitive cases to select judges, in order to achieve a pre-determined outcome.
It is believed that members from most opposition parties including Congress, DMK, NCP, Left Parties, Samajwadi Party, and even Trinamool Congress are on board to bring the impeachment motion against the CJI in Parliament.
In India, a judge of the Supreme Court can be removed only by the Parliament, and that too only on two grounds, i.e., proved misbehaviour or incapacity, as per Article 124(4) of the Constitution. Pursuant to Article 125, the Parliament enacted the Judges Inquiry Act, 1968 to lay down the procedure for investigation into allegations against a Supreme Court judge.
As per the Act, once a notice of impeachment is given, either in Lok Sabha or in Rajya Sabha, it is up to the Speaker of the House to decide whether to admit or reject the motion, based on consultation with persons or consideration of materials, as she thinks fit. If the Speaker decides to accept the motion, then a Committee is set up for investigating into the grounds made for removal of the judge, which comprises of a judge from the Supreme Court (chosen by the CJI), Chief Justice of a High Court, and a distinguished jurist. Thereafter, the Committee shall frame definite charges against the concerned judge, who shall be given an opportunity to reply to such charges, and give a written statement in defence. Upon the conclusion of the investigation, the Committee shall present its report to the Speaker about its findings on the charges. If the Committee’s findings do not prove the grounds aginst the judge, then no action needs to be taken. But if the allegations are proved against the judge, then the Committee’s Report along with original notice have to be adopted by the Parliament by a majority of total members of the House, and by a majority of not less than two-thirds members present and voting. If it succeeds, then it is placed before the President of India for final assent.
Given the complicated procedure involved, it is uncertain whether the first motion against the CJI would be accepted by the Speaker. Also, there would be questions regarding the propriety of the Speaker’s decision, considering how the Government has supported the present CJI in the aftermath of the four judges’ press conference in January, 2018. Anticipating the speaker’s reluctance, the opposition MPs are keen to approach the Supreme Court, if the Speaker denies the motion. Further, even in terms of the composition of the Inquiry Committee, complications would arise, since the CJI himself is being sought to be impeached, so the judge on the Committee has to be appointed by the senior most judges, who all have spoken out against the incumbent CJI.
The history of impeachment against judges has only been a history of ‘attempts’ and never ever a judge has been successfully impeached by the Parliament of India. The closest one has come was in the case of Justice V. Ramaswamy in 1991, who was found guilty of most of the charges against him by the Inquiry Committee, but the impeachment motion failed at the final stage, owing to insufficient votes.
In the present case, even if the impeachment does not happen, the fact that a sitting Chief Justice of India would even face the threat of impeachment is a wake up call for all of us citizens to take notice of the entrenched rot that has set in the judiciary, and how the independence of the judiciary is being compromised, by increasing executive encroachments. (IPA Service)
Weekly Round-Up of Major Decisions of the Courts in India as also Legal Policy Developments
- Stay on trial of civil/criminal cases only limited to 6 months– The Supreme Court in a landmark judgment held that in all pending cases where stay against proceedings of a civil or criminal trial is operating, the stay will end after six months, unless such stay is extended by a speaking order. In future cases where stay is granted, the same will end on expiry of six months from the date of such order unless similar extension is granted by a speaking order. The Court further clarified that the stay will be extended only in exceptional cases, where it had to be shown that continuing the stay was more important than having the final trial. [Asian Resurfacing of Road Agency Pvt. Ltd. & Anr. Vs. Central Bureau of Investigation, Criminal Appeal Nos.1375-1376/2013, date of judgment: 28.03.2018]
- Right to choose life partner recognised as a fundamental right: In a much needed decision,the Supreme Court has come down heavily on the ghastly practice of ‘honour killing’ and laid down strict preventive and remedial measures to eradicate the same. The Court emphatically held that when two adults consensuallychoose each other as life partners, it is a manifestation oftheir choice, which is recognized under Articles 19 and 21 ofthe Constitution. Such a constitutional right cannot be held hostage to the class honour or group think, and has to be protected. It further held that the consent of the family or community is not necessary, once two adults decide to marry. [Shakti Vahiniv Union of India, Writ Petition (Civil) No. 231/2010, date of order: 27.03.2018]
- PIL seeking re-examination of Mahatma Gandhi’s assassination dismissed: The Supreme Court finally dismissed a petition seeking re-examination into Mahatma Gandhi’s death probe. The Petitioner had sought fresh investigation into the assassination case, 70 years later, owing to the emergece of a ‘new fact’ that ‘a second person had fired a fourth bullet’. The Court criticised the delay in filing this petition and stated that criminal cases cannot be reopened on the basis of hearsay. The Amicus appointed in this case also found no evidence in the submissions made in the petition. Consequently, the Court dismissed the same. [ Pankaj Kumudchandra Phadnis vs. Union Ministry of Law and Justice, Special Leave Petition (Civil) No. 15103 of 2017, date of order: 30.03.2018]
- Validity of Section 70, Information Technology Act, 2000 upheld: The Supreme Court upheld the validity of Section 70, IT Act, which empowers the government to declare any computer resource as a ‘protected system’, whereby only the persons authorised by the government would be able to access the resource, and any unauthorised access is made a punishable offence under the law. This was challenged on the ground that delegated excessive and unfettered powers to the executive to arbitrarily declare any software as ‘protected system’. Rejecting the contentions, the Supreme Court said that Section 70, IT Act is controlled by the rigours of the provisions pertaining to ‘government work’ in the Copyright Act, and thus not arbitrary.[N. Firos vs. State of Kerala, Civil Appeal No. 79 of 2008, date of order: 27.03.2018]
- Whether sanction is required to start investigation against a public servant referred to a larger bench: In an important development, the Supreme Court has referred to a larger bench the issue of whether prior sanction for prosecution of allegations of corruption in respect of a public servant is required before setting in motion even the investigative process under Section 156(3) of the CrPC. The Court recognised that judicial opinions on this question were divided, wherein few judgments held that prior sanction was required before the Magistrate could proceed with a complaint against a public servant, while older judgments limited the need to take sanction, only once the cognisance was taken.[Manju Surana vs. Sunil Arora & Ors.,Criminal Appeal No. 457/2018, date of decision: 27.03.2018]
- Guidelines passed on the grant of bail– The Delhi High Court passed a series of guidelines on the issue of grant of bail for undertrials, especially those who are unable to pay their bail bonds or arrange local sureties. The Court held that the responsibility and duty of every court passing an order of bail is to ensure that the same is complied with has to be kept on the highest pedestal and undertaken in right earnestness. Some of the guidelines include duty of trial court to review reasons, if a prisoner is unable to secure release, despite bail order, and the responsibility of prison authorities to promptly bring any instance of a prisoner being unable to secure release from prison despite a bail order to the notice of the trial courts as well as the concerned District Legal Services Authority. [Ajay Verma vs. Govt. of NCT of Delhi, Writ Petition (Civil) No. 10689/2017, date of order: 08.03.2018]
- Law on dying declaration clarified–The Bombay High Court in a full bench decision clarified the law on dying declaration, on a reference by a division bench. The High Court held that “a dying declaration cannot be rejected merely because the same is not read over to the declarant and the declarant admitting the same to have been correctly recorded.” The Court further clarified that it can be one of the factors, if it assumes significance in the facts and circumstances of any case, but not the only factor.[Ganpat Bakaramji Lad State of Maharashtra, Criminal Appeal No. 186/2013, date of judgment: 09.03.2018]
- Freedom of Religion cannot be subject to unnecessary restraints- The Kerala High Court declared that no person requires a certificate of conversion from any designated institution, in order to effect changes in the government records. It held that “the Government cannot compel a person to affirm his change of religion, only through a particular mode via-a-via the certificate issued by the authorized organization. Freedom of practice of religion, as guaranteed under the Constitution is unrestricted by any qualification.” Accordingly, it held that the government orders that mandate such certification were only directory, and not mandatory.[Aysha vs. The Director, Office of the Directorate of Printing Department, Writ Petition (Civil) No. 16515 of 2009, date of order: 15.01.2018]
Other legal developments –
- Deadline to link Aadhaar with Welfare Benefits extended to 30th June, 2018– The Central Government has extended the deadline to mandatorily link Aadhaar with entitlement to ‘subsidies, benefits and services’ under Section 7 of the Aadhaar Act, 2016 to 30th June, 2018, from the earlier deadline of 31st March, 2018. Similarly, the Government also extended the deadline to link Aadhaar with PAN to 30th June, 2018. This was done, close on the heels of the Supreme Court extending the deadline to Aadhaar with mobile number and bank accounts, till the final disposal of the case.
Prepared by Amritananda Chakravorty ([email protected]) and Mihir Samson ([email protected]), Delhi based practicing Advocates.
The post Impeachment Move Against Chief Justice Of India Is On appeared first on Newspack by India Press Agency.
