Former Supreme Court judges and jurists are divided on whether Vice-President Venkaiah Naidu “pre-determined” the notice of motion to remove Chief Justice of India Dipak Misra.
Section 3 (1) (b) of the Judges Inquiry Act of 1968 is silent on whether the Rajya Sabha Chairman or Lok Sabha Speaker could refuse or admit a motion on the merits of the charges.
Justice V. Gopala Gowda (retd), former Supreme Court judge, said the law trusted the Rajya Sabha Chairman to exercise his discretion judiciously.
Justice Gowda said the Chairman was only clothed with “substantive procedural power” to see whether the signatures of a minimum 50 MPs were there, whether they are genuine, etc. The merits of the charges have to be decided by the Inquiry Committee.
Justice Gowda however said the Chairman’s order was judicially reviewable. “Every citizen has power to go to the court under Articles 32 or 226 of the Constitution,” he said.
Grounds for notice
But former Secretary-General of the Lok Sabha and constitutional expert Subhash Kashyap disagreed with Justice Gowda. “The job of the Chairman is to see whether there is a prima facie case, whether the notice for motion is based on substantial grounds, before admitting or rejecting. Now if there is no prima facie case and they (parliamentarians) went public with the charges, obviously, the Chairman is fully justified in rejecting the notice,” he said.
Legal scholar Upendra Baxi explained that the power of the Rajya Sabha Chairman and the Lok Sabha Speaker to refuse or admit a notice for motion to remove a judge is derived from Article 124 (4), which had asked Parliament to make a law — Judges Inquiry Act of 1968 — for the removal of judges.
“The Chairman or the Speaker look at the bona fide of the motion to see if the judge has prima facie committed alleged acts of mala fide. The Speaker or Chairman is the Master of his House. His/her order to admit or refuse a motion would be given after application of mind. This means, basically, an assertion that says ‘nobody can look behind my order. My order is final. I have to manage the House. You have to trust me’,” Dr. Baxi said.
He said if a plea challenging the Chairman's decision is filed in court, the court has four options. First, it could dismiss the petition outright on the grounds of Separation of Powers – Chairman and Speaker are independent co-constitutional authorities. The motion is a matter between the members of the House and the Presiding officers. Second, the court could agree with the Chairman that no prima facie case has been made. Third, the court could say that members have not proved the alleged mala fides in the ruling. Finally, it could hear and decide as per the Constitution and the law.
