The order of the vice president on the impeachment motion against the Chief Justice of India is totally untenable. It proceeds on a wrong premise and is cursory. The vice president appears to have laboured under the impression that he is a quasi-judicial authority, empowered to re-appreciate the charges. The so-called experts who advised him seem to have erred in their unanimity.
The “framers” of the Constitution had incorporated Article 124(4) and (5) enabling Parliament, comprising of politicians, to impeach the judges. They were conscious that Parliament was meant to function on political as well as party lines. It must have occurred to them that this power can be misused and abused, nevertheless they gave this power to politicians.
Besides even a motivated charge can also be proved and if proved, it can be the basis for impeachment. The bogey of “independence of the judiciary” is also not unrestricted. It cannot furnish reasons for sweeping all charges under the carpet. We must bear in mind that if the charges stand proved after an inquiry then it becomes a different ball game. It rises above party lines and individuals. To have a judge against whom a charge is established, in service, is equally damaging to the independence of the judiciary. The entire premise of the order is legally unsound, resulting in erroneous conclusions.
The first principle of appreciation enunciated at the beginning of the order is correct. Every statement made in the motion is to be taken as true and then it is to be seen whether it contains an element of misbehaviour. This is how courts assess when faced with a challenge to an FIR containing accusations. They believe every allegation to be true and then assess whether the offence alleged is made out or not. But this part of the order is in conflict with the latter part. This apparent conflict can be blamed on the “unnamed experts”. Later in the order (para 10), it appears that the vice president has proceeded on the premise that the misbehaviour has to be proved at the stage of admittance.
It assumes that motion must satisfy the test of “proved misbehaviour” contemplated in Article 124(4) before the procedure for removal can come into play. Fact is that under Article 124(4) the concept of “proved misbehaviour” comes into being at a stage after an inquiry is concluded. Article 124(5) clarifies this further when it visualises “investigation” and “proof of misbehaviour”. In other words, it is in the inquiry or investigation only that “proof of misbehaviour” would be led and established. Article 124(4) does not deal with the stage of admittance of motion. The vice president has, therefore, committed a serious error. Another error committed by him is to suppose that strict “onus” and “degree of proof” is needed at the initial stage, relying on Article 124(4) and (5). These provisions speak of stricter onus and a high degree of proof only at the stage of appraisement by the inquiry committee and Parliament. This principle cannot be applied “in limine” stage, to scuttle the inquiry. This is a serious anomaly.
The vice president has snatched some words out of their context like “may have been involved”, “he too was likely to fall” and “appears to have”, in order to draw an adverse inference of lack of definitiveness of the allegations. Whether the motion exudes certainty or not, cannot be determined by these phrases quoted out of their context. This is a desperate search for grounds to scuttle the probe. It gives an impression of bias resulting from old loyalties. The fact is such words are invariably used due to respect and regard for the institution.
Further, the vice president has not bothered to analyse each of the charges keeping the first principle, of presuming that facts alleged are correct and true, in mind. Instead he has proceeded to unequivocally denounce the evidence or discredit it. This is not the role assigned to the vice president under the Constitution. The charges do not merely “hinge on suspension”. On the one hand, the vice president has stated that the charges/statements may be taken as true yet he denounces the charges as baseless. If the charges alleged are taken as true then they make a formidable case requiring investigation under Article 124(5). For instance, the case of Prasad Education Trust clearly shows some improper orders were passed.
The connection of evidence with the charges if read with the CBI documents would be established in the investigation. This serious error has occurred primarily because the vice president believed that the charges have to be proved through cogent evidence beforehand. The charges have to be assessed in the light of the larger issue of “institutional integrity”. Coming to the last issue of allocation of benches, it cannot be an internal matter of the Supreme Court, particularly when four eminent senior-most judges out of whom one is an incumbent Chief Justice of India have come out openly. The charge, if carefully analysed, is that the Chief Justice of India was allocating politically sensitive cases to select judges. In laymen terms, it means “bench management”. Is this not a serious charge and what more proof is needed? Unless one calls them unreliable, it is a matter worth investigating. The vice president has tried to gloss over by calling it an “internal matter” coming under the powers of the Chief Justice of India as “master of roster”.
Likewise, the charge of a false affidavit for land allotment is a serious charge of “perjury” which cannot be washed away. Detractors may say that the Congress had by design overlooked this at the time of his elevation as high court judge, but it is not a Congress vs BJP issue. Would such a judge not hesitate to deal with similar matters? Or would he inspire confidence? Irrespective of the motive, the vice president has exceeded his jurisdiction. However, it would be interesting to see, as and when the petition is filed in the Supreme Court challenging the vice president’s order, who allocates the bench to hear this case and where it is allocated.
(The writer is a senior advocate in the Supreme Court)
