Twenty-six years ago, senior advocate Kapil Sibal accused Rabi Ray, Speaker of the Ninth Lok Sabha, of illegally admitting the motion for removal of then Supreme Court sitting judge, Justice V. Ramaswami.
Mr. Sibal had said the admission was the result of non-application of mind to see whether the material placed on record formed a prima facie case against the judge. Mr. Ray’s decision to admit the motion was “bereft of reasons”, he argued.
Mr. Sibal’s submissions are recorded in the Supreme Court judgment of M. Krishnaswami versus Union of India , delivered by a five-judge Bench in August 1992. Mr. Sibal was Justice Ramaswami’s counsel.
On Tuesday, Mr. Sibal termed Rajya Sabha Chiarman M. Venkaiah Naidu’s decision to refuse the notice for removal of Chief Justice of India Dipak Misra as “illegal” and “unprecedented”.
The reasons he presents are diametrically opposite to the ones he gave the five-judge Bench in 1992. According to Mr. Sibal, the Vice-President has usurped the functions of the Judge Inquiry Committee.
He alleged that Mr. Naidu exceeded his brief by going beyond procedural checks like “whether the motion is in order or not, whether the signatures are valid and the charges are not frivolous...”
‘Unique situation’
Mr. Naidu’s order gives rise to a unique situation in law. Experts are divided on whether the Chairman could have actually refused the removal motion on merits.
Experts point out that the problem lies in the fact that Section 3 (1)(b) of the Judges Inquiry Act of 1968 is silent on whether the Chairman or the Speaker can decide on merits Senior lawyer R. Vaigai, who spearheaded the campaign by advocates against former Sikkim High Court Chief Justice P.D. Dinakaran, recalled that then Vice-President Hamid Ansari merely “entertained their petition and forwarded it to the Judge Inquiry Committee”.
“He [Mr. Ansari] did not pass an order finding the merits or de-merits...
Former Chief Justice of India K.G. Balakrishnan, who was the top judge during the removal motion process of Calcutta High Court judge Soumitra Sen, also recalled that there was no separate process for admission or rejection of motion at the level of the statutory authority [Rajya Sabha Chairman/Lok Sabha Speaker].
The answer to the conundrum may be found in the Krishnaswami judgment wherein the Constitution Bench held that though it is the “individual discretion” of the Speaker or the Chairman to admit or refuse a motion, this discretion is expected to be of a “reasonable man” who acts with a “high degree of responsibility”.
The court interpreted that the power of the Chairman/Speaker extends to only verifying whether the motion is based on “sufficient material or evidence”.
