New Delhi: On April 20, leaders of seven opposition parties handed over a notice – signed by 71 Rajya Sabha MPs – to the chairman of the upper house, Vice President Venkaiah Naidu, seeking the impeachment of Chief Justice of India (CJI) Dipak Misra.
With it, a new chapter got appended to the existing record of steps taken by parties not in power to remove a judge .
Three days later, Naidu, on April 23, rejected the notice which claimed judicial impropriety against the CJI on five counts. Among the allegations are charges of bribery in the Prasad Medical College case and abuse of judicial and administrative power in order to hear the medical college case, besides allegedly giving a false affidavit to procure land when he was lawyer in Odisha.
While this is the first time that a removal notice against the head of the country’s highest court has been brought in, it’s not the first time the judiciary has experienced an impeachment move.
In 1991, a removal notice was brought in by 108 Lok Sabha MPs of the National Front, Left parties and the Bharatiya Janata Party against Justice V. Ramaswami, then a Supreme Court judge, for allegations of wrongdoing pertaining to his tenure as chief justice of the Punjab and Haryana high court. Rabi Ray, who was speaker of the Lok Sabha, reportedly came under intense pressure from the government not to allow the motion in the lower house. Yet, he went ahead, on the last day of the Ninth Lok Sabha.
Juxtaposing that episode with the April 20 one, there are interesting similarities in how a ruling party typically reacts to a removal notice. Both the chapters have some common players too, particularly Kapil Sibal.
Justice Ramaswami served as chief justice of the Punjab and Haryana high court between November 1987 and October 1989. before being promoted to the Supreme Court as a judge. In mid-1990, several media reports accused him of spending an exorbitant amount on his official residence in Chandigarh – including purchasing expensive carpets – and of objecting to an audit. The Bar Council of India, along with some opposition MPs, approached the then CJI Sabyasachi Mukharji to take note of it. In July 1990, the CJI advised Ramaswami to desist from carrying out judicial functions till an investigation was done and his name was cleared.
Justice Ramaswami, thereafter, went on leave. The three-judge committee set up by the CJI submitted its report in November 1991 to Justice Ranganath Misra, who had succeeded Justice Mukherjee after his demise.
In the June 4, 1993 cover story for Frontline, Supreme Court lawyer Prashant Bhushan wrote that the committee was of the opinion that “If an inference of moral turpitude became inescapable could the judge be considered disentitled from discharging judicial functions. The committee further advised the Chief Justice ‘to consider whether such unseemly controversy could be put to rest by requesting Justice Ramaswami to make good the value of these items (which were allegedly misappropriated by him) without prejudice to his stand and contentions in the matter.’ On this report, Ranganath Misra ended the five-month leave of Ramaswami who resumed work in December 1990.”
Misra, by the way, is the uncle of the present CJI Dipak Misra.
However, more media reports surfaced indicting Ramaswami of administrative and financial malfeasance (such as, sending his official vehicle to Chennai for a family wedding, Rs 9.1 lakh bill on residential telephones in just 22 months) and embezzlement of expensive goods from his official residence. This led the Bar Council to pass a resolution on February 1 that year to seek his removal.
On February 29, 1991, 108 MPs of opposition parties submitted a notice to speaker Ray seeking a motion on his removal in the Lok Sabha. They were eight more than the minimum required number needed in the lower house to bring in such a motion. Unlike in the Rajya Sabha, where the minimum number is set at 50 MPs.
The MPs brought in 11 charges against the judge based on the audit reports of the high court and the accountant general’s office besides reports of a district judges’ committee set up by the high court to probe the charges.
The government of the day, headed by Chandrashekhar as prime minister with outside support from the Congress, mounted enormous pressure on Ray not to admit it. Rajiv Gandhi sent two Congress aides from Andhra Pradesh, P.V. Narasimha Rao and B. Shankaranand, to persuade the speaker to reject the notice. According to media reports at the time, the duo apparently argued for Ramaswami, stating that he refused bail to several terrorists involved in the Khalistan movement and by doing so served the cause of unity and integrity of India. Bhushan’s report said Gandhi himself called Ray with the same plea.
Ray, though, went with the audit reports and admitted the motion on March 12, 1991, the last day of the Ninth Lok Sabha. After the house transacted all business that day, while the members thought the house would be adjourned sine die, the speaker, instead admitted the impeachment motion. Ray formed a committee, as per the Judges (Inquiry) Act comprising Justices P.B. Sawant, P.D. Desai and O. Chinnappa Reddy.
Interestingly, the government tried to stall the process by refusing to issue the required notification to the committee to begin work. It was based on advice given by the then attorney general G. Ramaswamy and law minister Subramanian Swamy that the motion lapsed with the dissolution of the house.
In regard to the recent notice against CJI, Arun Jaitley – predictably of the ruling party – as well as the law minister, came out against it. Calling it a “revenge petition”, Jaitley said, “It is an attempt to intimidate a judge and send a message to other judges, that if you don’t agree with us, 50 MPs are enough for a revenge action. The charges read out are those which have been settled by judicial orders or by precedent. Some issues are stale, trivial and have nothing to do with judicial functions.”
Congress MP Sibal, who defended Justice Ramaswami during the removal motion in parliament then, reminded Jaitley in an interview to the Times of India on April 23, “When Justice (Soumitra) Sen was removed (in 2011), Jaitley (then) said, When this divine function of deciding the fate of others is bestowed in a judge, we expect him to perform it with the highest standards of scholarship and utmost impartiality. He must be detached from all collateral persuasions.”
In the Ramaswami case, hearing a petition by a bunch of SC lawyers, the apex court finally ruled against the government’s stand. In January 1992, the committee submitted its report and put together a chargesheet against Justice Ramaswami stating 14 counts of alleged wrongdoing. Without responding to the charges, Ramaswami questioned the jurisdiction of the inquiry committee, leading the committee to proceed on its mandate without his cooperation.
Meanwhile, a Congress MP from Ramaswami’s home state Tamil Nadu, M. Krishnaswamy, filed a petition in the Supreme Court through Congress member and lawyer Sibal, questioning the jurisdiction of the committee. Though the Supreme Court dismissed the petition, Ramaswami’s wife submitted another petition seeking a copy of the committee’s confidential report which was readied in June 1992, before it was submitted to the speaker arguing that he won’t be able to defend himself in parliament. The Supreme Court thereafter ruled that the justice would get an opportunity for judicial review even though the parliament voted for his removal.
Five months after the report was submitted to the speaker, it was tabled in the Lok Sabha in December 1992.
On May 10, 1993, the impeachment motion was put before the house for a debate. “After the opening speech of Somnath Chatterjee of the Communist Party of India (Marxist) recommending the adoption of the motion, counsel for the judge, Kapil Sibal, was by an unprecedented procedure allowed to address the House. Sibal made a six-hour presentation, hailed for its eloquence, by which he sought to show that there was no substance in the charges found proved by the committee and that many of them in any case were trivial. He ridiculed the motion for the removal of a judge “for purchases of a few pieces of carpet or a few suitcases.” By referring to various statements made by the judge in his reply sent to parliament and to various documents filed by him in his reply, Sibal sought to demonstrate that the charges could not stand. Sibal’s lengthy presentation was heard by a packed House and it impressed many, wrote Bhushan.
Just like the CJI removal notice led the Biju Janata Dal to oppose it, presumably because Dipak Misra belongs to Odisha, Congress MPs from Tamil Nadu too put a lot of pressure on their party then to defeat the motion against Ramaswami and even issued a statement to the media.
During the debate, George Fernandes, then of Janata Dal, read out details of the committee’s report, leading him to puncture Sibal’s argument of Ramaswami being a “man of simple habits living alone in Chandigarh” by pointing out that the audit reports said he spent Rs 40,000 on towels, tablecloths and bed linen, spent Rs 2000 per day to run the household.
When the time for voting arrived, Narasimha Rao directed all the MPs to abstain from voting; Congress’s ally AIADMK too stayed away from voting. Among the 401 members present in the house that day, 196 voted for it while 205 stayed away, thus defeating the motion.
“As for the Congress (I), it has reinforced its image of being a party that balks at taking a stand on contentious issues. There has been speculation about the party making a deal with Ramaswami to the effect that if it spared him the humiliation of impeachment, he would later resign. Until he does, though, he will be its new albatross,” said a report in India Today then.
“Five successive chief justices who have been in office since the impeachment motion against Ramaswami was admitted have continued to allow him to discharge judicial functions despite the obvious loss of public confidence in him on account of the impeachment motion. Three chief justices, including the present one, continued to assign him judicial work even after the publication of the report of the inquiry committee finding him guilty of gross misbehaviour. Obviously, the judiciary cannot be left to a self-disciplining mechanism which also failed in the Ramaswami affair,” Bhushan wrote.
Ramaswami went on to fight the 1999 general elections from Sivakasi on an AIADMK ticket but lost to Vaiko of the MDMK.
Unlike Rabi Ray initiating an inquiry based on the charges brought in by opposition MPs in spite of pressure from the ruling party, Vice President Naidu dismissed the Rajya Sabha MPs’ notice.
Reacting to it, Bhushan told The Wire, “In my view, it is totally a mala fide decision, taken at the behest of the BJP. The reasons cited for dismissal are that the charges are not true; the language of the motion is tentative in nature. How can the charges be proved true before an inquiry committee is set up? It was only a plea to set up an inquiry committee to probe whether the charges were true.”
Looking back at the Ramaswami episode, he said, “There is not much similarity except that the Congress tried its best to stall it. The Bar Council moved a petition in the SC against it. In that episode, an inquiry committee was set up and here we see even that is not allowed, which is the big difference. The debate and voting for the removal of the CJI would have come later but instituting a committee to look into the charges could have been done.”