No case for impeaching Chief Justice Misra, say former SC judges
New Delhi: Former Supreme Court judges and legal luminaries have taken a dim view of CPI-M General Secretary Sitaram Yechury's move to initiate impeachment proceedings for removing Chief Justice of India Dipak Misra on the issues raised by four senior judges in their now famous "Friday press conference" on January 12.
They say "there is no case at all" and that the move at best was "premature".
Justice K.S. Radhakrishnan (retd) described the entire controversy as being rooted in the administrative side of the top court's functioning.
"It is purely an administrative issue about the allocation of work. All the constitutional bodies and offices face such administrative or procedural issues -- be it PMO, Lok Sabha Speaker or Rajya Sabha Chairman -- and there is an internal mechanism to resolve them", Justice Radhakrishnan said.
Justice Radhakrishnan who presided over the bench that sent Sahara chief Subrata Roy to jail and was also part of bench that had heard Vodafone tax matter, pointed to the "history of cases being assigned to benches having judges with lesser number of years in the top court."
They four judges at the Friday press conference were of the views that CJI was allocating certain high profile and important cases to the judges of his choice instead of assigning them to judges with more experience and years in the top court.
On this, Justice Radhakrishnan said: "There is nothing like junior judges in the Supreme Court. Senior judges are only for the collegium" -- whose functioning again falls within the realm of administration relating to the appointment of judges.
He pointed out that a case relating to Sahara's Optionally Fully Convertible Debentures was assigned to him and Justice J.S. Khehar (who later rose to be CJI) when they hadn't served for too long in the Supreme Court.
Describing the move as "premature", devoid of any "verifiable and definite allegations", Justice B. Sudarshan Reddy (retd) said: "A move to impeach a judge or a Chief Justice is fraught with serious consequences."
Pointing to the seriousness that is inherent in taking recourse to Articled 124 (4), of the constitution, Justice Reddy said: "As I find from the press reports, nobody is suggesting or disclosing any such allegation" against Chief Justice Misra and "therefore it appears to me, as it is present, it is premature."
Article 124 (4) provides for the removal of a Supreme Court or High Court judge for "proved misbehaviour or incapacity."
"A move or a motion to impeach a sitting judge should not become a plaything in the hands of the political class," said Justice Reddy who is known for his judgment leading to the setting up of an SIT for bringing back money laundered in overseas tax heavens.
Asserting that "politicians have no right to jump into the fray", former Attorney General Mukul Rohatgi said: "It is difficult to fathom reasons for this move for impeachment. Some internal rumblings within the institution can be resolved within the institution."
He said Yechury's move was "outrageous" and should be "nipped in the bud."
Expressing "shock" over the move, and taking a dig at the "casualness with which the issue of impeachment" had been raised by the political class, senior counsel K.V. Vishwanathan said: "The impeachment process ought not to be seen as some arbitrary and whimsical power in the hands of the political class. Worse still, (is) to think that, by threatening to exercise that process, the judiciary can be subjugated."
The procedure for the removal of a judge, outlined under the Judges (Enquiry) Act 1968, says at least 50 members of Rajya Sabha or 100 of the Lok Sabha can move a motion for setting into motion the process for remoing a sitting judge. The motion has to be addressed to Rajya Sabha Chairman or the Lok Sabha Speaker as the case may be.
The Congress, which is second largest party after the ruling BJP both in Rajya Sabha and the Lok Sabha with 57 and 46 seats, respectively, is crucial for moving the motion. However, the party does not seems to be enthusiastic about it.
Describing Yechury's statements as "laughable" which showed "lawmakers in poor light", Viswanathan said it not only "undermines the justice delivery system in the eyes of the public (but) causes an incalculable harm to democracy".
Pointing out that impeachment could only be on the grounds of proven incapacity and misbehaviour, senior counsel and former vice president of Supreme Court Bar Association Ajit Sinha said: "There is no such aspersion made by any of the four judges against Chief Justice Dipak Misra."
On his part, Yechury had said: "We are moving ahead. I think by the time Parliament opens on January 29, the matter will be very clear. We will be moving towards impeachment motion. It is time for the legislature to play its role along with the executive."
The other political parties have hitherto refrained from commenting on the issue.