Wheels have been set in motion for the unprecedented impeachment motion against the Chief Justice of India. On Friday, the main opposition Congress and six other parties moved a notice – signed by 71 current and retired lawmakers of the Rajya Sabha – for the impeachment of Chief Justice Dipak Misra to Vice-President Venkaiah Naidu.

But…

According to Article 124(4) of the Constitution: “A judge of the Supreme Court shall not be removed from his office except by an order of the President passed after an address by each House of Parliament supported by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present and voting has been presented to the President in the same session for such removal on the ground of proved misbehaviour incapacity.”

Now that is not just difficult to read and make sense of, it is even more difficult to implement.

First, the charges:

The CJI has been accused of five counts of “misbehaviour” and “misusing” authority. According to Congress’ Kapil Sibal:

• The first charge relates to the conspiracy to pay illegal gratification by persons in relation to the Prasad Education Trust case and the manner in which the case was dealt with by the Chief Justice.
• The second and third charges relate to the Chief Justice having dealt on the administrative as well as on the judicial side with a writ petition which sought an investigation into the matter of Prasad Education Trust, in which he too was likely to fall within the scope of investigation.
• The fourth charge relates to the Chief Justice having acquired land when he was an advocate by giving an affidavit which was reportedly found to be false.
• The fifth charge relates to the abuse of power by the Chief Justice in choosing to send sensitive matters to particular benches by misusing his authority as Master of the Roster with the likely intent to influence the outcome. This charge was also levelled by four senior-most SC judges at a press conference in January – which is when the demand for CJI Misra’s impeachment was first made.

The above allegations have to be proved.

A long-winding impeachment

Step 1: A notice of motion issued by 100 MPs from the Lok Sabha or 50 MPs from the Rajya Sabha is required.

Step 2: The Speaker or Chairman of the House can accept or reject the notice of the motion for impeachment. If the notice is accepted, the Speaker or Chairman forms a three-member panel – comprising a senior Supreme Court judge, a high court judge and a jurist – to inquire into the charges.

Step 3: If the committee finds substance in the allegations, the motion is taken up for discussion in the House in which it was introduced and must be passed by a special majority – supported by a majority of the total membership of that House not less than two-thirds of the members of that House present and voting.

Step 4: Once cleared, it is taken up in the next House where too it has to be passed by a special majority.

Step 5: Once passed by both Houses, the President of India has to give approval to the impeachment.

Failed attempts

While impeachment proceedings haven’t ever been initiated against a CJI in India, they have been moved against several judges in the past:

V Ramaswami: The Supreme Court judge was the first against whom proceedings for removal were initiated by the BJP and Left parties in 1991. He was defended by lawyer and Congressman Kapil Sibal. Of the 401-strong House, only 196 members voted in favour of the motion. Not backed by two-thirds of the total members present and voting by an absolute majority, the motion fell through.

Soumitra Sen: Accused of graft, the Calcutta High Court judge resigned days before the Lok Sabha was to take up the impeachment motion – already passed by the Rajya Sabha – against him in 2011.

PD Dinakaran: The Chief Justice of the Sikkim High Court faced allegations of corruption and misconduct and his removal was sought by 75 opposition members in the Rajya Sabha. He resigned after an inquiry panel was formed but before impeachment proceedings could be initiated against him.

JB Pardiwala: As many as 58 Rajya Sabha MPs moved an impeachment notice against the Gujarat High Court Justice in 2015 for “objectionable remarks on the issue of reservation”.

SK Gangele: A panel was set up in 2015 by then Rajya Sabha Chairman Hamid Ansari to look into allegations of sexual harassment against Justice SK Gangele, a sitting judge of the Madhya Pradesh High Court. He was subsequently acquitted.