“Inquiry : A formal investigation
into facts.
Investigation : Systematic collection of evidence to discover
and examine facts to establish truth.
(Webster’s dictionary)”
We know
that we are living in post-truth world when prayers for investigation or
inquiry are thrown out summarily at the threshold by constitutional
functionaries stating that the allegations are not proved, conveniently
ignoring that inquiry/investigation is sought to apply the specialized tools
and agencies at the disposal of State to discover facts to justify or falsify
the allegations. Such instances force one to redefine ‘inquiry’
and ‘investigation’, deviating from its commonly understood meanings.
The order passed by the Chairman of Rajya
Sabha Venkaiah Naidu rejecting the impeachment motion moved against Chief Justice
of India, though not surprising, is confounding because of its asymmetrical
reasons. Asymmetrical - because the reasons are either upside-down (allegations
are not proved, so no inquiry), or circular (like placing reference on a
judgment passed by CJI-led bench in a case, which was alleged to have been
improperly dealt with by the CJI, so as to justify CJI)
Flawed test of “proved misbehaviour”.
The premise of the rejection order is that the
draft motion failed to establish “proved misbehaviour” on the part of CJI. The ‘test’ applied by the RS Chairman, as clear
from paragraph 5 of the Order is as follows :-
“At the stage of admission I have to
apply a test that if every statement stated in the petition is believed to be
true, would it still amount to a case of “proved misbehaviour” within the scope
of Article 124(4) of the Constitution of India.”
Further, in paragraph 10, it is stated as follows:
“Proved misbehaviour” is an
expression clearly distinguishable from ‘misconduct’ as is apparent from the
language of Article 124(4). The intent, gravity and onus are of a much higher
degree. The prefix ‘proved’ places an obligation of actually proving the
misbehaviour before the parliamentary procedure can come into play. (in
Re:Meher Singh Saini (2010) 13 SCC 586) (emphasis
supplied)
The motion was rejected because of its failure to
meet the ‘test’ employed by the Chairman of bringing out “proved misbehaviour”.
This ‘test’ employed by the Chairman is
fundamentally flawed. ‘Proved misbehaviour’ is a term in Article 124(4) of the
Constitution of India, which states that a Judge of the Supreme Court can be removed
from office only by an order of the President on ground of ‘proved
misbehaviour’ or ‘incapacity’. For the President to order removal, the
impeachment motion should be supported by two-third majority of both the houses
of Parliament present and voting. The stage for such proceedings had not
reached in the instant case. The RS Chairman committed a grave error by leapfrogging
to Article 124(4), oblivious of his role and mandate.
As per Article 124(5), Parliament can enact law
to regulate the procedure for “investigation and proof of misbehaviour or
incapacity of a Judge”. Judges (Inquiry)
Act, 1968 is the law enacted as per Article 124(5). The RS Chairman is merely a statutory
authority under Judges (Inquiry) Act. As per Section 3, if a motion for impeachment
is endorsed by at least 50 members of the Rajya Sabha, then the role of
Chairman begins, and he has to decide whether to admit the motion or reject it.
The Judges (Inquiry) Act does not have any test of “proved misbehaviour”. The Act
is intended only to regulate the procedure for investigation and
proof of misbehaviour or incapacity of a Judge, going by its preamble. The
Judges(Inquiry) Act is therefore largely ‘procedural’ and the RS
Chairman is only a statutory authority who has to act within the contours of
the procedural legislation. Hence, the role of RS Chairman is very limited, and
he cannot sit in judgment over the merits of the allegations.
The
Chairman’s role is limited to making a preliminary scrutiny of the complaint to
see if there is a prima facie case to refer it to the Committee for
investigation. The actual ‘investigation’ is to be carried out by the Committee
constituted under the Act, and the actual decision regarding impeachment has to
be taken by the Parliament based on the findings returned by the Committee. That
being the scheme of Article 124(4) of the Constitution of India and the Act
enacted as per 124(5), the Chairman, acting as a delegate under the Act, cannot
import the test of “proved misbehaviour” while deciding whether to admit the
motion. The test of “proved
misbehaviour” is reserved for use of the President at the stage of proceedings
under Article 124(4) for deciding whether to remove the Judge from office. It is not for the Chairman to apply this test
while acting under the Judges (Inquiry) Act.
Further, on the basis of use of tentative phrases
in the draft motion like “CJI may have been involved in conspiracy of paying
illegal gratification”, the Chairman held that the members who signed the
motion were “unsure of their own case”.
This sort of picking holes from the tone of language used in the motion
is too frivolous a rebuttal, least expected from Chairman RS who is holding a
high constitutional post. The Members
can only bring out the cloud of suspicious circumstances enveloping the office
of CJI, which warrant inquiry. They cannot state with certitude that CJI is
guilty of misbehaviour. That is for the Committee under the Judges (Inquiry)
Act to investigate.
Whether internal matters of Court
beyond the scope of inquiry.
The Chairman summarily shot down other
allegations against CJI - regarding arbitrary use of power as the ‘Master of
the Roster’ to assign cases to benches, and also regarding alleged forgery done
by ante-dating an administrative order - by stating that those were “internal matters
to be resolved by the Court”. To buttress the rejection order, reference was
made to the decision of CJI-led bench in Kamini Jaiswal v. Union of India which stated that CJI is the
‘master of the roster’. Curiously, the manner in which CJI dealt with Kamini
Jaiswal case, which had sought for independent investigation into the
allegations of Prasad Education Trust bribery case, was the subject-matter of
second allegation in the draft motion. The rejection order does not
specifically address these allegations, except by foreclosing them by stating
they were internal matters of court.
The Act does not bar inquiry into “internal
matters” of Court. When judicial conduct is subjected to inquiry, it will
necessarily take in “internal matters of Court” under its sweep. The rejection
order sets a bad precedent, because any suspicious judicial conduct could be
shielded on this ground. Further, the grievances regarding arbitrary allotment
of cases had emerged from within the judiciary itself, as clear from the letter written by four senior judges of SC
collegium, which was made public when they held the press conference on January
12. In the letter by four judges, it was
stated as follows:
There have been
instances where case having far-reaching consequences for the Nation and the
institution had been assigned by the Chief Justice of this Court selectively to
the benches “of their preference” without any rationale basis for such
assignment. This must be guarded against at all costs.
Contrary to past precedents.
The reasoning of rejection order is not in
accordance with the settled precedents of previous RS Chairpersons admitting
impeachment motions without sitting on judgment on the merits of allegations.
The recent examples are the impeachment motions which were moved against P.D
Dinakaran, ex-judge of High Court of Karnataka and Soumitra Sen, ex-judge of Calcutta High
Court. The impeachment motion against P.D Dinakaran was
spearheaded by Arun Jaitley, the present Union Finance Minister. In both
instances, Hamid Ansari, who was the then Rajya Sabha Chairman, admitted the
motion without going beyond preliminary examination.
Although the Chairman cannot act like a
‘post-office’ mechanically forwarding any motion for impeachment to the
Committee, the role cannot be stretched too wide to sit in judgment over the
merits of the motion. What the Chairman
should ideally do is to act as a filter to examine if the motion has any
prima-facie material, and whether it is motivated by mala fide
intentions. It is pertinent to note that the Chairman has no case that the
impeachment motion is actuated by any ‘mala fides’. Here
the Chairman exceeded his role, and usurped the function of Committee, and
invoked the test of “proved misbehaviour” contained in Article 124(4), even
before the motion had reached that stage. By setting the bench-mark too high
for the motion with the artificial test of “proved misbehaviour”, the Chairman
did not let the motion see the light of the day, forestalling a parliamentary
process.
Anyhow, more unprecedented events will unfold if
the rejection gets challenged in Court. The decision of Chairman cannot be
regarded as part of a parliamentary procedure, as it was made in the capacity
of a statutory authority under the Judges (Inquiry) Act. Therefore, the
decision is certainly justiciable. Anyhow, by aborting the impeachment motion,
a permanent cloud has been created over the office of CJI. The well-wishers of Indian judiciary would
have wished to see the office of CJI emerging unscathed in the agni pareeksha
of inquiry proceedings. That would have enhanced the prestige of
institution manifold.
Published in Live Law on 30.04.2017
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