Yesterday morning Vice-President Venkaiah Naidu rejected the notice to initiate the impeachment motion against Chief Justice of India Dipak Misra. It was expected that the Opposition parties including the Congress party will pounce on the opportunity to hit back at the governing Bharatiya Janata Party (BJP). Barely hours later, when Congress held its press conference on the Vice-President’s order, the tone and tenor of the statements were characteristically harsh. Congress leader and senior lawyer Kapil Sibal went on to term the order as “illegal”, “ill-advised” and “hasty.”

On April 20, seven opposition parties – including the Congress had met VP Naidu to submit the notice. It was signed and supported by 71 Upper House parliamentarians – seven of whom have retired.  Opposition leaders had briefed the media on Friday on the five grounds on which they wanted the removal of CJI Misra. The timing of the press conference and impeachment motion were important. Congress party and other Opposition party leaders trained their guns on the CJI  a day after the Supreme Court rejected five public interest litigations (PILs) seeking an independent probe into special CBI judge BH Loya’s death.

According to the Constitutional provisions, first, the Chairman of the Rajya Sabha decides whether he wants to accept or reject an impeachment notice. The process of impeachment is initiated after the Chairman accepts the notice. Under the Judicial Inquiry Act, he then appoints an inquiry committee – comprising a Supreme Court judge, one Chief Justice of High Court and one jurist. Naidu, in this case, gave a strong blow to Opposition parties right at the beginning. That too quickly.

In the order, VP Naidu said, “I am of the firm opinion that the Notice of motion does not deserve to be admitted.” In the 10-page order, the Vice-President also said the notice to begin a motion for the removal of the CJI is “neither desirable nor proper.” Naidu, in point number 19, observed that while deciding upon such a notice one should “examine all the factors very carefully and dispassionately” as the “initiation of such proceedings tends to undermine the faith of the common person in the judicial system”.

The five allegations levelled against CJI Misra in the notice were “neither tenable nor admissible”, according to the order. It further read that “the allegation emerging from the present case has a serious tendency of undermining the independence of the judiciary”.

Naidu, the Chairman of the Rajya Sabha, also observed that the allegations against the CJI were largely unsubstantiated and that the phrases used by members in the notice indicate “mere suspicion…or an assumption”. This doesn’t establish proof  “beyond reasonable doubt” required to make out a case of “proved misbehaviour” under the Article 124 (4) of the Constitution to remove the CJI.

The order is set to trigger another round of events. Congress party leaders have made it clear that they will file a petition in the Supreme Court against the Chairman’s order.

Senior Congress leader Sibal said: “The order is unprecedented, illegal, ill-advised and hasty.” He said never before an impeachment notice has been rejected at a preliminary stage.

“It is illegal because the Chairman has passed an order which is required to be passed after a full-fledged inquiry,” said Sibal. According to him, the Chairman’s role was to just check whether the motion is in order or not under the Article 124 (4) of the Constitution and verify whether the signatures are genuine or not. Sibal accused the Chairman of acting in “quasi-judicial capacity”.  

The Chairman in the order has said he cannot weigh the pros and cons of the allegations. However, Sibal said that Naidu had weighed the pros and cons of the charges by ascertaining whether there is a prima facie case for the charges levelled in the motion.

Naidu in the order had observed that the charges against the CJI have not been proved. Sibal took on this point and said,“How can something be proved before it is probed?”

Importantly, while the Rajya Sabha chairman is being accused of not consulting the collegium, in the order, Naidu says he has gone through comments made by “editors of prominent newspapers which are unequivocal and nearly unanimous” that the impeachment notice was “not fit case for removal of judges.” However, it is important to note that in January four senior-most justices – J Chelameswar, Ranjan Gogoi, Joseph Kurian and MB Lokur — had held a press conference on the judicial crisis in the SC and had levelled allegations against the CJI. Senior SC lawyer Prashant Bhushan also levelled charges against CJI Misra – including allegations of backdating a memo and filing a false affidavit in Odisha.

Sibal while speaking to reporters said the party had got the signature of parliamentarians weeks before the judgement in the Loya case was delivered, hence the timing of the notice should not be questioned. “We were told that until 20th the Chairman is busy…we didn’t know that decision Loya case will be delivered on Thursday,” he said.

Naidu’s order may have brought embarrassment for all the parties who had come together for the impeachment notice. However, Sibal asked reporters to not dub the notice as a “political issue”.

He further added that the BJP government “is very keen” that an inquiry in this case is not initiated. The Congress leader said if the CBI has serious “proofs” against the CJI, then “the judiciary is in jeopardy.”

Sibal made it clear that they will now move the Supreme Court against the order. However, whether all the parliamentarians who have signed the notice will move the court remains unclear. A senior Congress leader said, “It was not possible to get in touch with these 71 parliamentarians within a few hours.  Also, anyone can file the petition against the order. So, even if a few MPs move to the court, the petition will be still filed.”

A group of leaders within the Congress are not very comfortable with the impeachment motion and the party’s decision to approach the SC. When asked about them, Sibal candidly replied, “Those who have understood the importance of this motion are with us, those who haven’t are anaadi.”

The decision to approach the apex court against VP’s order will be yet another unprecedented moment in the history of this country. It also opens a whole new array of questions. Will the SC will accept the petition? Will the CJI be on the Bench that hears the petition or will he appoint a Bench?