May a good source be with you.

3 Reasons Why The Press Conference On Moving An Impeachment Motion Is Legal And Constitutional

'Highly placed sources' in the Rajya Sabha cited by The Indian Express are completely wrong in their understanding of constitutional and legal provisions.

Citing certain ‘highly placed sources’, The Indian Express has reported that the opposition parties had violated the provisions of the ‘Handbook for Members of Rajya Sabha’ by conducting a press conference on serving a notice for removal of Chief Justice of India Dipak Misra before it has been admitted. As per these ‘highly placed sources’, Rule 2.2(VIII) in the chapter on ‘General Matters’ of the ‘Handbook for Members of Rajya Sabha‘ says that any notice submitted to the Chairman of the Rajya Sabha should not be given advance “publicity”. This argument is incorrect for the following reasons:

First, the Judges (Inquiry) Act, 1968, under which this notice has been served by MPs of seven opposition parties, the procedure is statutory till the inquiry instituted by the Chairperson of the Rajya Sabha is concluded. Therefore, the question of parliamentary rules does not even apply to this case till that stage and the provisions of Handbook have no bearing on the motion.

Second, the provision that is being cited by ‘highly placed sources’ is not even a parliamentary rule. It is a handbook for members of Rajya Sabha, which is just a compilation of guidelines listing good practices. Leave alone any constitutional sanctity, these are not even the ‘Rules of Business’ which are more important. Any violation of these so-called guidelines cannot be even a point to be considered by the Chairperson of the Rajya Sabha.

Third, this extract from the 1991 Judgment by the Constitution Bench on Sub-Committee of Judicial Accountability demonstrates that the bogey of rule violation being cited is only a distraction:

3.1 The constitutional process for removal of a Judge up to the point of admission of the motion, the constitution of the Committee and the recording of findings by the Committee are not, strictly, proceedings in the Houses of Parliament. The Speaker is a statutory authority under the Act. Up to that point, the matter cannot be said to remain outside the Court’s jurisdiction. [66 E]

3.2 The scheme of Articles 124(4) and (5) is that the entire process of removal is in two parts – the first part, under clause (5) from initiation to investigation and proof of misbehaviour or incapacity is covered by an enacted law, Parliament’s role being only legislative as in all the laws enacted by it, the second part under clause (4) is in Parliament and that process commences only on proof of misbehaviour or incapacity in accordance with the law enacted under clause (5). Thus, the first part is entirely statutory, while the second part alone is the parliamentary process. [61 D]

3.3 The context and setting in which clause (5) appears along with clause (4) in Article 124 indicate its nature and distinguish it from Articles 118, 119 and 121, all of which relate to procedure and conduct of business in Parliament. [61 B-C]

3.4 The validity of law enacted by the Parliament under clause (5) of Article 124 and the stage up to conclusion of the inquiry in accordance with that law, being governed entirely by statute, would be open to judicial review as the parliamentary process under Article 124(4) commences only after a finding is recorded that the alleged misbehaviour or incapacity is proved in the inquiry conducted in accordance with the law enacted under clause (5). For this reason, the argument based on exclusivity of Parliament’s jurisdiction over the process and progress of inquiry under the Judges (Inquiry) Act, 1968 and, consequently, exclusion of this Court’s jurisdiction in the matter at this stage does not arise. [59 G-H, 60 A]

These three reasons clearly show that the Chairperson of the Rajya Sabha cannot dismiss the notice on any frivolous grounds. As is the past precedent, where all notices of impeachment have been admitted by the Chairperson, this notice by 64 MPs will have to be admitted and an enquiry committee established. Venkaiah Naidu has no choice.

It is high time that ‘highly placed sources’ in the Rajya Sabha secretariat desist from planting such frivolous reasons to reject the notice. BJP as the ruling party may be favourably disposed towards CJI Misra but the Rajya Sabha Chairperson ought to remember that he is no longer a member of the BJP. Let us get going with the constitutional process of the removal of the CJI.

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