(Live Law)

BY: MANU SEBASTIAN APRIL 30, 2018 1:02 PM

“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 RajyaSabhaVenkaiah 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 a 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 misbehavior” 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 misbehavior 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 the 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 RajyaSabha, 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.

Hence, the Chairman misdirected himself by employing a ‘test’ which is totally alien to the proceedings under the Judges (Inquiry) Act.  The reference made to the decision in Re: Meher Singh Saini (2010) 13 SCC 586 is out of context. That was a decision regarding removal of members from the State Public Service Commission, and the passing remarks made there have no relevance here. The Chairman put the cart before the horse by burdening the Members with “actually proving the misbehaviour” for admission of motion.

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 an 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.

Therefore, these were not frivolous charges which deserved summary rejection.

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 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.

http://www.livelaw.in/putting-the-cart-before-the-horse-when-rs-chairman-rejected-impeachment-motion-against-cji-for-not-proving-allegations/