Former Chief Justices of India and eminent jurists said on Friday that there was no need for Chief Justice of India Dipak Misra to withdraw from work merely because 60 Opposition MPs had submitted a notice for his impeachment to the Rajya Sabha Chairman.
Both the Constitution and the Judges (Inquiry) Act of 1968 are silent on whether a judge facing impeachment motion should recuse from judicial and administrative work till he is cleared of the charges against him. This is the first time that a Chief Justice of India is facing an impeachment motion.
Former Chief Justice of India K.G. Balakrishnan, who described Chief Justice Misra as a “naturally capable” judge, said the CJI remained unaffected by the impeachment move of the Opposition parties.
“Neither the law nor propriety requires the CJI to withdraw from work. Until the Rajya Sabha Chairman makes up his mind to admit the motion and refer it to an Inquiry Committee under the 1968 Act, things will be as usual for the CJI,” N.R. Madhava Menon, eminent legal academician and founder-director of National Judicial Academy, Bhopal, said.
Former Solicitor-General of India Mohan Parasaran said, “Just because a motion is moved, why should he [CJI Misra] actually cease to do his work. Otherwise, tomorrow any 50 MPs can sign an impeachment motion and hold the judiciary to ransom.”
Former Chief Justice of India R.M. Lodha said it was the CJI’s call whether or not to withdraw from work voluntarily.
‘Tough call’
“One thing is sure, it will be difficult for the CJI to discharge his duties as expected of a CJI while the impeachment notice is hanging over his head. It will be very stressful. It will be a tough call exercising his authority,” Justice Lodha said.
Former Attorney-General Mukul Rohatgi called the impeachment notice a “cheap tactic” to intimidate Chief Justice Misra and denigrate the institution.
Review of decision
The jurists are, however, divided on whether a decision by the Rajya Sabha Chairman to refuse the impeachment motion would be judicially reviewable.
Justice Lodha said the decision of the Chairman was open to judicial scrutiny. He said impeachment was a “legislative process where a decision thereon is amenable to judicial scrutiny”, and added that the Chairman’s decision was not protected by parliamentary privilege.
Mr. Parasaran differed, saying the Chairman’s decision to refuse or admit the motion would be hit by parliamentary privilege.
Justice Balakrishnan also dismissed any fears of the Rajya Sabha Chairman “sitting on” the impeachment motion, waiting till Chief Justice Misra retires on October 2 this year and the motion becoming infructuous.
“He [Chairman] is a constitutional authority. This motion is made by 60 MPs. The Chairman cannot refuse the motion on flimsy grounds. He cannot delay and let uncertainty continue. He has to decide within a reasonable time,” the former CJI said.
Justices Lodha and Balakrishnan, however, agreed that impeachment as a process to remove judges required a re-look. “For 60 years, it has not worked wherever it was needed. It requires serious deliberation on what alternative measures can be employed to bring an end to the matter ,” Justice Lodha said.
