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(NEMO IUDEX IN CAUSA SUA)
The seven opposition parties in Rajya Sabha had served a notice on April 20 to impeach the Chief Justice of India before the Chairperson, the ex officio position of which is assumed by the Vice President of the country. The notice was made on many grounds. The notice was rejected by the Chairperson without being referred to a team of Supreme Court judges and legal and administrative luminary as has been practised by the previous Chairpersons on many occasions. On any occasion the notice to impeach the judges of the Supreme Court and the High Courts is rejected as the first instance in the present one.
In support of the rejection of the move, it is stated that the independence of judiciary has to be upheld. It is also stated that the move is against the First person in the apex judiciary from another pillar of the state viz. the legislature. Prior to the move, in January 2018 itself four senior judges in the Supreme Court had issued statements against the present CJI for his way of functioning in an exclusive press conference convened by them. It is unprecedented in the history of Indian judiciary. The issue was already raised within the apex judiciary itself against the Chief Justice of apex court. Still the issues, raised by them on allocation of cases to the different Benches of Supreme Court are not decided by them. On April 22, two senior judges of the apex court have urged the CJI to hold a full court to discuss the institutional issues plaguing the apex judiciary. But CJI says he is the first among the judges who are equal and with that he would be the master of roaster in respect of allocation of cases to the Benches.
Besides the allocation of the cases, there were a few alleging some direct or indirect charges associating the CJI and they were dealt by him contrary to the principle prevailing in jurisprudence. Nemo iudex in causa sua – no one should be a judge in his own case. No one could be supreme in the exercise of power of the State of democratic polity. One of the allegations of the opposition parties is their allegation over a perceived cover up of the CBI court judge Loya case. The Bench headed by CJI rejected the case without even hearing the petitioner’s side. Again the legal maxim, audi alterem partem is violated. There have been instances of a two Judge bench verdict being overruled by a three Judge bench and a three Judge bench verdict being overruled by a five Judge bench in the Supreme Court.
The Supreme Court is not a court to hear intra court appeals. Besides, the doctrine of ‘Stare Decisis’ that is to stand by things decided, must be respected. The issue of thorough discussion among the judges of Supreme Court is still pending due to the denial of opportunity by the CJI under the premise of possessing exclusive power to act like that.
When the seven opposition parties from the legislature side moved against the CJI, the Vice President as Chairperson of Rajya Sabha rejected the impeachment notice citing absence of any ‘proved misbehaviour’ or ‘incapacity’ on the part the senior most judge.
The former Additional Solicitor General of India, Bishwajit Bhattacharyya pointed out the word ‘proved’ has been mentioned in Article 124(4) of Indian Constitution and the Vice President has quoted Article 124(4) in his order. The power of Article (4) is exercised by the President of India not by the Vice President. The Vice President’s power is limited to Article 124(5) which is procedural in nature. And the words ‘investigation’ and ‘proof’ of the ‘misbehaviour’ in Article 125(5) signify that without ‘investigation’ there cannot be any ‘proof’.
The chairperson, however much is learned cannot reject the notice without referring to the proper forum for investigation. The past practice has not been followed now.
The unusual action by the helm of the apex judiciary and at the presiding level of the upper house of all India legislature viz. Parliament is against the democratic principles of the State enunciated in Indian Constitution. No one could be supreme in the absolute sense in a democratic and republican polity.
The really aggrieved are the citizens of the country who repose highest faith in the apex judiciary as the last resort of justice. The words of Dr. B. R. Ambedkar signify the present imbroglio: “However good a Constitution may be, if those who are implementing it are not good, it will prove to be bad. However bad a Constitution may be, if those implementing it are good, it will prove to be good.”
