A day after the Supreme Court dismissed pleas seeking an inquiry into the December 2014 death of Justice Brijgopal Harkishan Loya, the Opposition made its move to seek the impeachment of Chief Justice of India Dipak Misra on Friday. Leader of Opposition and Congress member Ghulam Nabi Azad said that the motion to dismiss Justice Misra, submitted to Vice-President and Rajya Sabha Head Venkaiah Naidu, had received the signatures of 71 Parliamentarians (of which seven have retired). The full text of the statement issued by the Opposition listed five charges against Misra. The parties that supported the move and were signatories to the statement included the Congress, the Nationalist Congress Party, the Communist Party of India, the Samajwadi Party, the Bahujan Samaj Party and the Indian Union Muslim League.
The Opposition had first discussed moving an impeachment motion against Justice Misra in January, after four senior Supreme Court judges revolted against the chief justice and held a press conference questioning his method of allocating cases. In the unprecedented rebellion, Justice Chelameswar, Justice Rajan Gogoi, Justice Madan B Lokur and Justice Kurian Joseph addressed the media on January 12 claiming that the functioning of India’s top court could threaten the country’s democracy.
The impeachment process
The Constitution gives politicians the power to initiate removal proceedings against a Supreme Court judge, but the process is long and arduous. Section 4 of the Article 124, on the establishment and constitution of the Supreme Court, lays down the grounds for the removal of a judge. It says:
“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.”
The procedure for the removal of a judge is elaborated in the Judges (Inquiry) Act, 1968. According to this Act, an investigation into a judge’s conduct can be initiated through a notice presented in either house of Parliament. If the motion is presented in the Lok Sabha, it needs to have the signatures of at least 100 MPs and if it is presented in the Rajya Sabha, it needs 50 signatories. In the Indian Parliamentary system, the vice-president is the Rajya Sabha chairman, whom the Opposition leaders approached on Friday.
If the Lok Sabha Speaker or the Chairman, as the case may be, admits the motion, a three-member committee is set up to look into the allegations against the judge. The committee includes the Chief Justice of India or another Supreme Court judge, a High Court Chief Justice, and one other jurist selected by the Chairman or the Speaker. The committee then needs to “frame definite charges” on which the investigation should be led against the judge, the Act states. The judge in question needs to be informed of the charges and is then given time to submit a written defence.
After an investigation and cross-examination, if the committee finds that there are grounds to remove the judge, then the matter has to be taken up for consideration in the House in which it was introduced. At this stage, the judge can once again defend himself, either in person or through a representative in the House. As mentioned in Section 4, Article 124 above, that motion has to be accepted by a special majority. The process has to be repeated in the other House and if it still passes muster, then it has to be presented to the president for approval. The process is the same for the removal of a High Court judge.
The process has been criticised as being onerous and so far, no judge has been removed this way, though impeachment proceedings have been attempted against a few judges in the past. The Hindu in 2017 published a list of these cases.
The Loya case
Loya was a Central Bureau of Investigation judge who was presiding over the Sohrabuddin Sheikh fake encounter case, in which Bharatiya Janata Party President Amit Shah was one of the accused. The judge died on December 1, 2014 while attending a wedding in Nagpur, purportedly of a heart attack. But a series of reports in the Caravan magazine starting November last year raised questions over the circumstances of Justice Loya’s death. Reporters spoke to his family, who raises concerns over the circumstances of his death and claimed there was pressure on him to deliver a favourable verdict in the case. Subsequent reportage, including by Scroll.in, pointed to more questions on the circumstances surrounding his death, including concerns over how his autopsy was conducted. However, a Supreme Court bench led by Justice Misra and also comprising Justice AM Khanwilkar and DY Chandrachud on Thursday ruled that there was no merit in the petitions seeking an investigation into his death. Shah was acquitted in the case by a CBI court on December 30, 2014.
Revolt against Dipak Misra
The January 12 rebellion against Justice Misra was unprecedented in India. The primary objection of the four dissenting judges was the manner in which the chief justice was allocating cases to be heard by various benches. The judges claimed that they had written a letter to Justice Misra with their concerns and held the press conference after he did not pay heed to them. At the press conference, the judges mentioned the Loya case as the trigger for the move.
The Chief Justice of India is the master of the roster – the one who assigns cases to other judges and decides the composition of the bench. In their letter to him, the protesting judges contended that “there have been instances where case having far-reaching consequences for the Nation and the institution have been assigned by the Chief Justices of this Court selectively to the benches ‘of their preference’ without any rational basis for such assignment.”
While they did not give specifics, Justice Misra had reportedly reallocated cases several times since he took charge in August 2017. Matters came to a head in November, when the court was hearing a medical colleges scam case, pertaining to the allegations that former members of the judiciary took bribes to issue court orders that would favour medical colleges that had failed to get official registrations.
On November 9, a bench headed by Justice Chelameswar directed a writ petition seeking an independent investigation into the alleged scam, at the time being probed by the CBI, to a five-member Constitution bench. The petitioners wanted such a bench to exclude Chief Justice Misra as he had been a part of hearings in the case in August and September last year. However, the next day, Justice Misra put together a five-judge bench that nullified Justice Chelameswar’s order on grounds that the Chief Justice had the sole authority to decide benches to hear cases.
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