The recent politicisation of the Supreme Court of India is the first in India’s independent history. This was also accompanied by a politically motivated impeachment motion against the Chief Justice of India Dipak Misra. The MPs who introduced and supported the motion knew fully well that it will be defeated in the House, because they simply didn’t have the numbers, given the motion was accepted by the Vice-President acting as the Chairman of Rajya Sabha.
Our Constitution is based upon certain fundamental principles like rule of law, separation of powers and principles of natural justice. Separation of powers means that the judiciary, executive and legislature have their own domains of power. Of these, the executive and legislature are political and hence are open to political attacks. The judiciary is an organ which operates in the legal domain. It is hence not open to politics. The value system of common law stipulates that the judiciary be spared from the politics of the day.
Therefore, a politically motivated impeachment motion, whose fate is known beforehand is nothing but politicisation of the judiciary. This in the first place, is a violation of the rule of law.
However, since the motion was rejected by the Vice-President, it didn’t reach the floor of the House. This decision was challenged by 2 MPs of the Congress party in the Supreme Court. Firstly, addressing the merits of such a challenge, this again is in violation of the principle of separation of powers. The legislature alone has been endowed with the power of impeachment. If it were to be challenged in the courts, it literally means that the judiciary is sitting in its own judgement.
Therefore, both the introduction of the motion and the subsequent challenge in the Supreme Court are illegal positions. On Tuesday, the Supreme Court was supposed to hear this petition. Since the subject matter pertains to the Chief Justice of India and allegations against him were made by the next four senior judges, the top five judges naturally have a conflict of interest, if they choose to hear this case.
A constitution bench at the Supreme Court needs a minimum strength of five judges. Hence, the bench was composed of the next five seniormost judges. This, by any standard, is the fairest composition which is possible.
Kapil Sibal, appearing for the petitioners wanted to drag the case into technicalities. He demanded to see the judicial order which constituted the bench. On the refusal by the bench, he withdrew the petition.
The contention of Sibal that CJI can’t constitute the bench is misplaced. He is the master of the roster, as has already been established by the decision of the apex court itself. This power is not impeded by the conflict of interest which he faces, provided the composition is done using a fair logic. In the instant case, he composed the bench comprising of the next seniormost five judges of the Supreme Court, which is absolutely reasonable.
If Sibal himself wants to choose the bench, this evidently is not possible under the scheme of our Constitution. The petitioners, no matter who they are and what the case pertains to, can’t decide which judges will hear their case. This is a prerogative of the court and that’s how it should be. When such a question is raised, it is not only against the CJI but also against the five Judges, who were supposed to hear this petition. The judges on this bench have not been the part of the controversy. The Congress party is now politicising these judges too through its antics.
On an examination of the series of the events, it is evidently clear that the Opposition, headed by the Congress could not have derived a tangible benefit by creating this controversy. Its benefits are only political, coming at the cost of irreparable harm to the integrity of our judiciary. More importantly, this has opened the gates for further politicisation of the judiciary, which we can only hope is avoided.
The author is a Senior Fellow with the Department of Humanities and Social Sciences, IIT Bombay, Mumbai. He can be reached at email@example.com, Twitter: @raghavwrong
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Updated Date: May 09, 2018 14:50:47 IST