The chairman of the Rajya Sabha (like the speaker of the Lok Sabha) is well within his powers to reject a motion for the impeachment of a judge of the Supreme Court or High Courts. Section 3 of the Judges (Enquiry) Act, 1968, suggests that when the requisite number of members of the Rajya Sabha sign on to an impeachment motion, the chairman can choose to admit or deny the motion after consulting whoever he needs to. The chairman is not a post office – his task is not to simply check if the requisite number of members have signed on to the motion and then to set up a three-member committee to inquire into the allegations of misbehaviour.

Seen thus, one would think that there is nothing fundamentally wrong with Vice-President and ex officio Rajya Sabha Chairman Venkaiah Naidu’s rejection on Monday of the motion to impeach Chief Justice of India Dipak Misra moved by Rajya Sabha members from the Congress and other parties. Although it had the requisite number of signatures, the motion for impeachment was rejected by Naidu on the grounds that the allegations against Misra cannot be “proved misbehaviour”. He took the view that even on a plain reading of the allegations against Misra in the motion for impeachment, they would not amount to misbehaviour.

Naidu’s approach is of dubious legality. While no one expects him to set up a committee simply on the asking, it is also not open to him to look deep into the future and see if the allegations can be proved. This is because the court has clarified, in M Krishna Swami v Union of India, that the speaker (or the chairman, as the case may be) is not supposed to act like a judicial or quasi-judicial authority. It is not for the speaker to decide whether the charges are proved (that is for the committee to decide) or whether the judge should be removed for misbehaviour (that is for Parliament to decide).

Overstepping boundaries

So, what is the speaker, or the chairman, to do?

The answer is fairly clear from the Supreme Court’s judgement in M Krishna Swami and this is what Naidu’s order also refers to. The chairman needs to ensure the proceedings are being initiated in good faith, and also that on a bare reading of the allegations, they amount to misconduct. Whether they can or will be proved is not for him to decide. The chairman has to just be sure that there is some basis in fact for alleging that the judge has committed acts that might amount to misbehaviour.

Regrettably, Naidu has gone far beyond his legal mandate and tried to put an end to the proceedings at a very preliminary phase.

The very line, “I have weighed the evidence produced in the notice to assess if there is adequate, cogent, coherent evidence to proceed further” suggests that he has stepped beyond the boundaries prescribed and acted like the committee he is supposed to set up to do this task. If challenged in court, this could end up damning Naidu’s order.

On the other hand, if he has in fact “weighed the evidence” even to arrive at just a preliminary conclusion that no allegations amounting to misbehaviour are made out, there is little to show for it in the order itself.

There are five charges that have been levelled against Misra in the impeachment motion. They are:

  1. Being involved in the conspiracy in the Prasad Education Trust case.
  2. Hearing cases that he had a stake in.
  3. Deliberately backdating an order to list a case before himself.
  4. Making false declarations as an advocate for purchasing land in Odisha.
  5. Allocating cases to judges to ensure a pre-determined outcome.

In rejecting the complaint, Naidu does not deal with the particulars of each charge. The order is somewhat difficult to parse because while dismissing all the charges as not amounting to misbehaviour, it does not specify which one falls short and to what extent. No mention is made of the fourth charge relating to Misra’s purchase of land and the failure to surrender it once he became a judge. Keeping in mind that actions such as this led to impeachment proceedings in the context of Justice Soumitra Sen of the Calcutta High Court, one wonders why Naidu took no notice of this at all in his order. Although he takes pains to say that he has gone through the charges and the annexures, he never really tells us why he thinks the documents are not credible and trustworthy to make out a prima facie case against Misra.

Naidu’s reasoning

Some of the reasoning, however, is frankly baffling. A judge hearing a case he is interested in, concerning his conduct and his use of powers, is misbehaviour by any definition of the term. Whether this is proved is for the committee to decide but Naidu brushes it away by reference to the very judgement alleged to have been delivered by a bench handpicked by Misra to ensure a favourable outcome (for him). A bizarre statement is made that since the charges relate to Misra’s powers as “Master of the Roster”, it is an “internal matter to be resolved by the Supreme Court”. It is impossible to figure out what Naidu is trying to say here, and one is not even sure what it has to do with the charges of misconduct raised against Misra.

Ultimately, Naidu had a very important task in the matter. Whether he accepted the motion of impeachment or rejected it, he had to ensure this was being done to restore faith in constitutional governance in India. Either way, it was his duty to give clear and cogent reasons for accepting or rejecting the motion of impeachment against Misra. Needless to say, he failed his constitutional duty terribly.