Impeachment motion against CJI Dipak Misra: Congress' low blow has injured judiciary beyond repair

Had it not been such a tragic day for democracy in India with grave implications for its future, 20 April, 2018 could have gone down in history as a day of dark humour. There is an element of amusement attached to the phenomenon of the devil quoting from the scripture. It stretches our credulity even as it horrifies us.

It was mildly amusing and overwhelmingly distressing to note the Congress position itself as "democracy's saviour" while moving to strike a fell blow at its very roots by bringing an arbitrary impeachment motion against the Chief Justice of Supreme Court. The mala fide attempt doesn't stop at being a "revenge petition", as Arun Jaitley has described it in a blog post.

Congress invoked the "independence of the judiciary" and waxed eloquent on the need for it to "stand firm, independent of the executive, and discharge(s) its constitutional functions honestly, fearlessly and with an even hand" for "democracy to thrive".

Wise words, purportedly aimed at cloaking its base attempt in the guise of a higher ideal. And profoundly ironical. Congress bets on short public memory but forgets that history is indelible. Its six-decade rule is fraught with repeated attempts to harm judicial independence, interfere with its functions and undermine democracy. These crocodile tears fool no one.

Congress leaders at a press conference on Friday. PTI

Congress leaders at a press conference on Friday. PTI

It took a landmark verdict by a 13-judge bench of the Supreme Court (7-6 in favour) on 24 April, 1973, to uphold the primacy of the Constitution in the Kesavananda Bharati vs State of Kerala case where both judicial independence and the Constitution's supremacy came under attack from the Indira Gandhi government. As it had done during the Emergency and now while moving to impeach the CJI, the Congress tried to diminish the authority of the judiciary after being at the receiving end of a series of adverse verdicts.

As senior advocate of the Madras High Court Arvind P Datar recalled in an article for The Hindu in 2013, Indira Gandhi was "smarting under three successive adverse rulings". In 1967, in the Golaknath case, the Supreme Court ruled that the Parliament could not amend or alter any fundamental right. Another adverse judgement came two years later in a case relating to nationalisation of 14 banks (the right to nationalisation was upheld) and in 1970, the Supreme Court delivered another ruling against Gandhi's abolition of privy purses.

"Smarting under three successive adverse rulings, which had all been argued by NA Palkhivala, Indira Gandhi was determined to cut the Supreme Court and the High Courts to size and she introduced a series of constitutional amendments that nullified the Golaknath, bank nationalisation and privy purses judgments. In a nutshell, these amendments gave Parliament uncontrolled power to alter or even abolish any fundamental right," writes Datar in his article. Kesavananda Bharati, the head of a mutt in Kerala, had challenged these amendments in the Supreme Court leading to the landmark judgement where the Supreme Court held that "Parliament could amend any part of the Constitution so long as it did not alter or amend 'the basic structure or essential features of the Constitution'."

Speaking to Times Now on Thursday, senior advocate Harish Salve said: "We were young college students when the Kesavananda Bharati verdict came. And the then party in power superseded three of the senior-most judges because they decided the case one way. But they didn't hide their motive… they said we are superseding because these judges are not in sync with the though process of the government in power. My late guru Mr Palkhivala wrote a small book on this and its name was: A Judiciary Made To Measure. [Pause]. For me, this is déjà vu…"

Let us take a moment to consider that a party which enjoys such a track record in "upholding the independence of judiciary" has now moved an impeachment motion against the CJI because it ostensibly could not digest an adverse verdict, and in so doing has sought to cloak its manouvre under the garb of high morality. Rich.

It is in this backdrop that we may consider the series of tweets on Saturday by Union Minister of State for Home Affairs Kiren Rijiju against Congress's motion to impeach the CJI.

There is very little chance for the motion — which stands on flimsy ground — to succeed, given the arduous process and the Opposition's lack of numbers. It satisfies none of the two basic conditions on which such a drastic step may be based: CJI's "incapacity" or "proven misconduct". Such a motion had never been brought in the past against an acting Chief Justice of India, and in none of the five cases where an impeachment procedure was invoked against Supreme Court and High Court judges has it been successful.

It is by now quite clear that this is Congress's cynical ploy fashioned to meet multiple political ends (see this columnist's earlier piece).

There could be two sets of repercussions for this ill-conceived move — procedural and political — both severe and in both cases, the institution of the judiciary will suffer an irreparable blow to its moral authority.

Procedurally, it is up to the Vice-President and Rajya Sabha Chairman Venkaiah Naidu to admit the motion. Naidu, who is now in an unenviable position, will be faced with twin dilemmas. If he admits the motion and places it before the Parliament, CJI Dipak Misra will be under tremendous pressure to withdraw from work. His reputation as a judge of the Supreme Court and the moral authority as the CJI — the first among equals — will take a hammer blow regardless of whether the motion proceeds or not.

If Naidu refuses to admit the motion, he will face a barrage of criticism from the Opposition, a section of the media and lawyer-activists that he has "failed to remain neutral." It is also possible that the Opposition in this case will approach the Supreme Court and the CJI will be asked to recuse himself from taking up a case that pertains to his impeachment.

In their report in The Print, Maneesh Chhibber and Divya Narayanan write that in the event Naidu rejects the motion, following which a writ is filed in SC and the CJI is forced to recuse himself, it should be heard by the Bench headed by the second senior-most judge – Jasti Chelameswar. But, here is where the problem lies: Justice Chelameswar was one of the four top judges of the apex court to come out and hold a press conference against the conduct of CJI Misra. Ditto for the next three in order of seniority — Justices Ranjan Gogoi, Kurain Joseph and Madan Lokur, who were also present at the presser."

Since the CJI is the Master of the Roster, it is unclear who will decide on the composition of the Bench. We are on uncharted territory. Former judges are of the opinion that during the time that the Vice-President takes in deciding on the next court of action, the CJI is under no obligation to suspend himself from work.

The Hindu quotes former Chief Justice of India KG Balakrishnan as saying that CJI Misra remains unaffected by the impeachment move of the Opposition parties. Former Solicitor-General of India Mohan Parasaran told the newspaper: “Just because a motion is moved, why should he [CJI Misra] actually cease to do his work. Otherwise, tomorrow any 50 MPs can sign an impeachment motion and hold the judiciary to ransom.”

However, even if the CJI reports to work, he will be under unbearable pressure to discharge his duties and his verdicts will lack the moral authority that accompanies every judicial verdict. It is here that the Congress's move will strike a devastating blow to the credibility of the Supreme Court and the office of the CJI. If, for instance, a Bench headed by him delivers a verdict in favour of the Aadhaar project, that may be interpreted as a move to please the government. Ditto in the Ram Janmabhoomi-Babri Masjid case. We now begin to understand the true import of Congress's motive.

Finally, the timing of the Congress's impeachment motion violates the core principle of judiciary in a democracy — that a judge cannot be forced out of office for delivering an unpalatable verdict. As Arghya Sengupta, research director of the Vidhi Centre for Legal Policy, writes in Hindustan Times, "…by choosing to bring an impeachment motion, not at the time, or at any other time, but when faced with an adverse judgment to which the CJI was a party, the most core principle of judicial independence has been breached — that a judge cannot hold his tenure based on the rightness or wrongness of his judgment."

Regardless of the motion's fate, Congress has let loose the dogs of anarchy in our democracy for narrow political ends. It is difficult to see how the judiciary, that derives its moral legitimacy primarily from public trust, can recover from this low blow.


Updated Date: Apr 22, 2018 08:59 AM

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