If VP can exercise Prez's functions, why can't Rajya Sabha deputy chairman perform duties of chairman: Supreme Court

New Delhi: The Supreme Court on Thursday said if the vice president can exercise the functions of the president in the absence of the president, then why cannot the Rajya Sabha deputy chairman exercise the functions of the chairman in the absence of the chairman.

The remarks were made by a bench of Justices Dipankar Datta and S C Sharma which refused to agree with the submission made on behalf of Allahabad High Court judge Yashwant Varma that the deputy chairman of Rajya Sabha had no power to reject a motion and, under the Judges (Inquiry) Act of 1968, only the Speaker and the chairman have the power to accept or reject a motion against a judge.

Justice Varma was repatriated from the Delhi High Court to the Allahabad High Court after burnt wads of currency notes were found at his official residence in New Delhi on March 14.

The bench, which reserved its verdict on Justice Varma's plea challenging the legality of the parliamentary panel probing corruption charges against him, asked the parties to submit their written submissions by Monday.

Appearing for Varma, senior advocates Mukul Rohatgi and Siddharth Luthra told the bench that Article 91 of the Constitution, which allows the deputy chairman of the Rajya Sabha to perform the duties of the office of the chairman in his absence, cannot be a basis for the deputy chairman to exercise the discretionary powers specifically vested in the chairman according to the Judges (Inquiry) Act.

Luthra submitted that the matter could have waited until the new chairman was appointed. The then vice president and Rajya Sabha chairman Jagdeep Dhankar had resigned after which deputy chairman Harivansh rejected the impeachment motion.

Rohatgi submitted that the Judges (Inquiry) Act did not authorise the deputy chairman to accept or reject the impeachment motion and only the Lok Sabha Speaker and Rajya Sabha chairman can do that.

Rejecting the submission, the bench said, "The Constitution does not work in a vacuum. If the vice president can exercise the functions of the president in the absence of the president, can't the Rajya Sabha deputy chairman exercise the functions of the chairman in the latter's absence?" Justice Datta further told Rohatgi that in the absence of the president, if the vice president can sign the warrants of appointment for judges in his capacity as acting president, then why can the deputy chairman not accept or reject the impeachment motion in the absence of the chairman.

"The country has to move on. There cannot be any vacuum," Justice Datta said.

Rohatgi said the deputy chairman can perform the normal duties of the chairman but the Judges (Inquiry) Act only refers to the Lok Sabha Speaker and Rajya Sabha chairman, and no provision says that the chairman will "mean and include" the deputy chairman.

Justice Datta then pointed out that the definition clauses in the Act also use the expression "unless the context otherwise requires".

Rohatgi further argued that there was no scope for going outside the Act, and a judge, who is facing the impeachment proceedings, has a right to demand that the procedure under the law must be strictly followed.

He submitted that the action of the deputy chairman in rejecting the motion was "ultra vires" and added that one House cannot proceed with the inquiry when the other House has rejected the motion against the judge on the same material.

Justice Datta then observed that the argument will make the Act "unworkable" and the court cannot open the law for misuse.

Rohatgi added that the "test of prejudice" is irrelevant when there is a blatant infraction of the procedure under the Act, which is designed to protect judges from frivolous impeachment proceedings.

He said both the Houses have to apply their mind to the motions and not doing so would cause prejudice to the petitioner.

Solicitor General Tushar Mehta, appearing for both Houses of the Parliament, said any interpretation which defeats the object and makes some provision unworkable should be avoided.

"If the deputy chairman cannot exercise the power of the chairman, then the proviso will become unworkable. The inquiry committee has to submit the report within three months and it becomes functus officio (having performed the duties) after that.

"If there is no chairman, then who will grant the time for extension to the inquiry committee, if it's not a joint committee (in case a motion is filed only in the Rajya Sabha)?" he submitted.

He added that this may not be a ground to interpret and take away the power conferred by the Constitution upon the deputy chairman in the absence of the chairman.

"If the chairman is absent and the deputy chairman, according to their (Varma's) interpretation, cannot act as chairman, would the motion filed in the Rajya Sabha fail? It would if their argument is right.

"This interpretation will defeat the object. The object is to protect the judicial officer but also to give a mechanism under the statute that it is being done independently," Mehta added.

On Wednesday, the top court orally observed that there was no bar under the Judges Inquiry Act on Lok Sabha Speaker Om Birla setting up an inquiry committee to probe corruption charges against Varma after a similar motion was rejected in the Rajya Sabha.

Earlier, the then chief justice of India Sanjiv Khanna had initiated an in-house inquiry and constituted a three-member committee comprising Punjab and Haryana High Court Chief Justice Sheel Nagu, Himachal Pradesh High Court Chief Justice G S Sandhawalia and Karnataka High Court Justice Anu Sivaraman.