The bubbling cauldron of Indian politics has thrown up many dirty tricks over the years. Few moves, however, can match the diabolical nature of the Congress-led attempt to remove the Supreme Court Chief Justice from office. It is a bid to politicise the highest seat of Indian judiciary and a cynical ploy to influence the outcome of a few politically sensitive cases.
What makes this stratagem particularly devious is the way the discord within Supreme Court is being harnessed to meet political ends. The draft 'impeachment note' indicates that the judges' rebellion is being used as a smokescreen.
While the ostensible motive is to move a motion in the Parliament against the Chief Justice of India for alleged improprieties, the real motive is to create a situation where CJI Misra comes under pressure and refrains from passing verdicts on cases such as the Ramjanmabhoomi-Babri Masjid title dispute, judge Loya and Aadhaar before he bows out of office in October, or presides over judgments that can't be deemed as favourable to BJP.
Congress' legal eagles, Opposition parties and a powerful lawyer-activist lobby — initiators of the move — are evidently apprehensive that if Supreme Court verdict in any of these cases goes BJP's way, Narendra Modi and Amit Shah might be able to build tremendous political momentum in the middle of a crucial election season.
According to media reports, a posse of Opposition parties led by the Congress are stirring the impeachment pot. Three senior Congress leaders — Ghulam Nabi Azad, Kapil Sibal and Ahmed Patel — have signed the petition while sincere effort is afoot to bring as many Opposition parties on board as possible.
"The Congress as the largest Opposition party has belatedly initiated the proceedings for impeachment of the Chief Justice of India," NCP leader Majid Memon, one of the signatories, was quoted as saying on Tuesday. His colleague DP Tripathi, another signatory, told reporters that the CPM and CPI have also signed the petition.
For such a motion to be moved in Parliament, the Opposition needs 50 signatures in Rajya Sabha and 100 in Lok Sabha. Around 20 have already been collected. According to The Economic Times, Congress leaders Azad and Anand Sharma "have started approaching various leaders belonging to TMC, NCP, Left, SP, DMK, IUML to sign up. A formal notice to move the motion could be filed within days."
Mamata Banerjee, who was recently in Delhi to forge an anti-BJP coalition of Opposition forces, seems to have got over her initial reluctance. After a meeting with activist-lawyer Prashant Bhushan on Tuesday, the West Bengal chief minister said TMC "will go with whatever decision the other parties take on the impeachment of the CJI. After all, one cannot ignore what the four judges had to say.”
Bhushan has crossed swords with CJI Misra on multiple occasions in the past. His grudge against the chief justice is well documented.
The moot question is whether this best-laid plan will succeed. The answer depends on the targeted outcome. If we take the "removal of CJI Misra" as the outcome, then the Opposition will likely fail. The draft impeachment note does not pass the smell test. Impeachment of a Chief Justice of the Supreme Court cannot be done lightly. Unless there are instances of proven misbehavior or misuse of office, such a move is ill-advised and will likely backfire. It also raises grave questions on the separation of powers in democracy.
The weight of opinion is against the move. Former attorney general Soli Sorabjee has called the attempt "ill-conceived", insisting that there is "no ground for impeachment." In an interview to ANI, he said: "Impeachment can be for serious misbehaviour or incapacity which neither exist in the CJI's case… It will affect the public perception of the independence and neutrality of the judiciary. I am totally against it."
Adish C Aggarwala, president of The International Council of Jurists (ICJ), has called it Congress' attempt at blackmail and vendetta. The ICJ, incidentally, had earlier objected to Justice Misra's elevation as CJI on charges of corruption. However, as a Catchnews article quotes Aggarwala as saying, "When we had objected to his appointment as CJI then the Congress did not bother, but now after suffering series of legal setbacks they have come with this… This impeachment motion by the Congress reeks of its intent to settle score with Misra and blackmail the judiciary."
Apart from a bad case, the Opposition will find it difficult to move the motion simply because it lacks the numbers to guide it through a complex, time-consuming process. Though motions for removal have been initiated against a few high court judges, no one has ever been forced out of office. The process, which will be stricter in the case of Supreme Court judges, has never been brought against any CJI in the past.
Even if the Opposition gathers the requisite signatures, the motion can be defeated by the Lok Sabha Speaker or the Rajya Sabha Chairman. If admitted, it will be subject to probe from a three-member committee. If misbehavior or incapacity is proven, the House in which the motion was introduced, can take up the consideration of the motion. Each House must pass it with special majority before it goes for Presidential assent.
It is fair to say that the Opposition has zero chance of forcing the removal of CJI Misra. If that's the case, what is the larger game behind the motion?
The initiators are not looking for actual removal of the CJI. That is not the targeted outcome. Their purpose will be served if the move creates enough noise for the CJI to come under duress and verdicts in the politically sensitive cases are either influenced, or delayed.
As Supreme Court advocate Virag Gupta tells The Print, "It was the Congress government that appointed Dipak Misra as a high court judge and elevated him to the Supreme Court. How can it now question his capacity as a judge?... The CJI is currently hearing important cases like Aadhaar and Ayodhya, decisions that may benefit the BJP. It looks like the Opposition is finding itself unable to counter the political force of the Modi government and thus is dragging the judiciary into the political domain."
It is evident that if the BJP gets a favourable verdict in the Ayodhya dispute and a go-ahead for a Ram temple is received, it may result in a consolidation of the Hindu votes and upset the caste calculations of the Opposition. Even if the verdict is unfavourable for the BJP, it may attempt a reverse polarization and again benefit from a consolidation of Hindu votes. In both scenarios, the consolidation may prevent the fragmentation of majority votes along caste lines and make it difficult for the Opposition to tackle the BJP.
The best case scenario for the Congress, therefore, is in ensuring that the verdict is delayed at least till after the completion of Lok Sabha polls next year. This motion is well-timed to suit that purpose.
The grand old party is predictably operating under a veneer of deniability. Busy working behind the scenes to formally initiate proceedings, none of its leaders have gone public yet. It is being said that some within the party are apprehensive about seeing the motion through. These are likely red herrings. The "impeachment motion" is of dual use to the Congress. On the one hand it helps maintain pressure on the CJI, on the other hand it serves as a touchstone for Opposition unity.
What the Congress might not realise (or care about) at this stage is that in its attempt to subvert judiciary for political ends, it may not just weaken Indian democracy but perhaps irrevocably damage its position as a national party that seeks power at the Centre. The relationship between the executive and judiciary is not to be trifled with.
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Updated Date: Mar 29, 2018 20:24:25 IST