Opposition vs Chief Justice Dipak Misra: Will the impeachment effort take off?

The bid to initiate impeachment motion against Chief Justice of India Dipak Misra may be gaining traction, but the Opposition camp seems to be divided with some including the Mamata Banerjee-led All India Trinamool Congress (AITC) appearing to be unconvinced by the move.

The move comes over two months after four top Supreme Court judges publicly accused the CJI of misusing his administrative authority. In the unprecedented media conference in January, Justices J S Chelameswar , Ranjan Gogoi, Madan B Lokur and Kurian Joseph had said important matters were being assigned to a bench of preference comprising junior judges.

Mooted first by CPI(M) General Secretary Sitaram Yechury in January, Congress is said to have recently circulated a draft proposal of the impeachment motion against the CJI over alleged impropriety.

The draft motion lists several charges against the CJI including “conflict of interest” in the medical college scam case and “misusing administrative authority as the master of roster to arbitrarily assign politically sensitive cases to select judges”.

Confirming the move, Nationalist Congress Party (NCP) leaders Majid Memon and DP Tripathi said signatures from prominent political parties including the Congress and Left have been collected.

Among other to endorse the proposal is the Samajwadi Party (SP).

“The Samajwadi Party stands with the impeachment motion, which is about bringing independence and unquestionable integrity to the judiciary," SP leader Ghanshyam Tiwari was quoted as saying by ANI.

 Advocate activist Prashant Bhushan met West Bengal Chief Minister and Trinamool supremo Mamata Banerjee in Delhi and is said to have discussed in details about the move.

Bhushan has been actively campaigning for Misra’s ouster as the CJI after the apex court dismissed his two petitions seeking a SIT probe into the Lucknow medical college scam involving a conspiracy to bribe the top judiciary.

Levelling charges of conflict of interest, forgery and derailing the CBI probe into the case, Bhushan had earlier sought a Supreme Court in-house probe against the CJI.

While Banerjee informed reporters that her party will go with what the rest of the Opposition decides, insiders say the Trinamool appears to be skeptical about the move and has suggested treading cautiously.

In her efforts to build an anti-BJP front, Banerjee is in Delhi talking to prominent Opposition leaders including NCP chief Sharad Pawar, UPA chairperson Sonia Gandhi and Delhi chief minister Arvind Kejriwal.

“Impeachment motion against no less than against the CJI, has enormous implications. The Opposition has begun to understand the need for uniting against the BJP. At such a crucial juncture, any misadventure which may discredit the entire Opposition is the last thing one would want,” said a source.

“There are issues which need to be deliberated before a definitive move can be made. The charges against him are that he has acting in an arbitrary way. But what is significant is, whether his arbitrary conduct is guided by an ulterior motive, and whether that is apparent enough?

“The charges against him are serious but are they grave enough to warrant impeachment. Moreover, are there sufficient grounds to convince the house the need for initiating impeachment and finally do we have the numbers?

“It all depends on these questions being answered in the affirmative satisfactorily,” the source said.

As per the Judges (Inquiry) Act, a motion must be signed by 50 members of the Rajya Sabha or 100 MPs of the Lok Sabha and submitted to the presiding officer of either House, who will set up a committee to examine it. Only if the committee is convinced that the motion has merit would it be debated and voted on. To pass, the motion must be supported by the majority of the House with not less than two-thirds of the members present and voting.

Even if the Opposition manages to get signatures of 50 members for the motion in the Rajya Sabha, it is likely to be shot down by the Chairman who under the Act, is empowered to do so.

Sceptics are also pointing to the Opposition’s failure to bring in a no-confidence motion against Narendra Modi government.

 “The outcome of the trust vote is a foregone conclusion, yet the government has been blocking it. The Opposition has struggled to get even the Speaker’s attention, so how come one can think they will allow the impeachment motion,” asked a leader.

BJP leader Subramanian Swamy has accused the Congress of trying to put pressure on the CJI ahead of the verdict in the Ayodhya dispute, which is being heard by a bench presided by the latter.

Congress leader and advocate Kapil Sibal who represented the Sunni Waqf Board in the case, withdrew himself after reportedly being asked to do so by his party.

“It is the Congress which promoted him as a high court judge, made him the Delhi HC chief justice and finally elevated him as a SC judge in such a way as to ensure that his seniority enabled him to become the CJI. And now at the fag end of his career, they are making this move. Perhaps apprehensive that the Ayodhya verdict may go in our favour, the Congress is trying to scuttle it,” said Swamy.

Among the other parties, BJP's ally Shiv Sena,, also preferred to be a fence sitter.

While expressing alarm over the situation in the judiciary, Sena MP Sanjay Raut said his party was discussing the issue and will take a call later.

The move has also been criticised by the legal fraternity.

Former Attorney General, Soli Sorabjee called it a 'ill-conceived' moved.

“It is a highly ill-conceived move and there is no ground for impeachment. Impeachment can be for serious misbehaviour or incapacity neither of which exist in the CJI's case.

"It will affect the public perception of the independence and neutrality of the judiciary. I am totally against it," he said.

The International Council of Jurists (ICJ), which had earlier red flagged Misra elevation as CJI for alleged corruption, accused the Congress of blackmail and vendetta.

“When we had objected to his appointment as CJI then the Congress did not bother, but now after suffering series of legal setbacks they have come with this,´ ICJ president Adish C Aggarwala.

The ICJ in August 2017 had petitioned the President and the then CJI JS Kehar opposing Misra’s elevation as the CJI over his alleged involvement in a land scam in Odisha while he was an advocate.

“It’s the CJI bench which ordered reopening of the anti-Sikh riot case and directed a SIT probe. Besides the Bofors case before the Supreme Court, the Congress has been facing flak over Sibal move to seek deferment of the Ayodhya case till the next Lok Sabha polls.

“This impeachment motion by the Congress reeks of its intent to settle score with Misra and blackmail the judiciary,” said Aggarwala.

The Opposition move is also a race against time. With Misra’s tenure slated to end in October, it has only two sessions- the ongoing budget session which ends 6 April and the Monsoon Session—to make its move.