Of impeachment and a crisis of judiciary

Harihar Swarup

Knowing well that its impeachment motion against Chief Justice of India (CJI), Dipak Misra, will be rejected by Vice-President Venkaiah Naidu, the Congress went ahead with the motion. Expectedly, the motion was rejected by the Vice-President and now Congress proposes to go to the Supreme Court. Government and its allies dubbed the motion as “politics of revenge”. The Congress leaders and the brain behind the move, noted jurist Kapil Sibal, say “only CJI’s removal process is political, motive is not”.
There is no chance of the impeachment motion succeeding even if Congress goes to apex court. Congress leaders, however, claim that they have succeeded in bringing in open the decadence that has set in the judiciary over the years. CJI has doubtless made some questionable judgment calls that have led to concerns over propriety of his conduct. It is true that the apex court is passing through troubled times.
Sibal recalled that when on January 12, four senior-most judges of the Supreme Court convened a press conference and alleged the way SC was administering justice was not in order, it had nothing to do with politics. When they said democracy was in peril or referred to Justice Loya’s case, it has nothing to do with any political process. The disquiet has emerged from within the judiciary. And all those issues that were considered by the MPs to sign the motion were already in public domain for some time, says Sibal.
With former Prime Minister Manmohan Singh and some senior leaders declining to sign the petition, it lacked credibility. Former law minister Salman Khurshid’s view that “impeachment is too serious a matter to be played with on grounds of disagreement with any judgment or with any point of view of the court” is noteworthy.  For another thing, the main premise of the petition rests not on just accusing the CJI, but also by implication at least four judges of being accomplices in the game of bench fixing.
In effect, not just the chief justice, but a significant chunk of court was being implicitly accused without any serious evidence. The timing of the motion seemed so overtly political, rather than principled, that it was easy to portray the impeachment motion as an intimidatory tactic to forestall judgments the Congress may not like.
Yes, it could be argued that the motion was to trigger an inquiry. But the threshold under which such an impeachment motion should be admitted is, rightly, for the sake of lifting independence of judiciary very high.
Meanwhile, Vice-President’s decision not to admit impeachment motion again fore-grounded our institutional quagmire. He has the statuary authority to reject the motion. He gave reasons for doing so. On balance, he arguably made the right judgment call. For, one important element of the case against Dipak Misra rests on the presumption that all those he is handpicking for particular bench are doing his bidding. This is what makes the charge against him more than merely one of exercising poor judgment. But this also means that it is not a charge that can be admitted lightly.
But Naidu’s reasons will not convince the skeptics, in part because of his continued partisanship. They will argue that it was not his mandate to ascertain whether misconduct had been proved beyond reasonable doubt; it was merely to ascertain whether there were sufficient grounds for proceeding with a further inquiry. He should not have acted as an inquiry commission itself.
A low threshold for the vindication of suspicion threatens judicial independence; total certainty before we can proceed gives no means for redressing legitimate concerns about the conduct of the chief justice. Now we wait for a petition to be filed before the very Supreme Court whose creditability is being impugned. We are in a peculiar situation where every actor’s credibility is so much in question that justice will not seen to be done, even if the actors actually do the right thing. Each has now contributed to the decimation of the institution.
The Chief Justice by always appearing to be a judge in his own cause, the rest of the court by being a divided house without the minimal ability to exercise principled leadership, the BJP for  so plainly intimidating the judiciary over appointments, and now the Congress party for creating a precedent where impeachment motions are used all too lightly.
Meanwhile, there is a large game going on. The Chairman rejects the motion in order to protect judicial independence. But the government has done its level best to break the judicial independence. It is sitting on recommendations for appointment to the Supreme Court and High Courts of the Collegium led by Dipak Misra who is supposedly acting at the behest of government. So appointments to the courts are stuck and have and have cloud over them. The BJP’s conduct gives more ammunition to those who believe that the government is trying to intimidate the judiciary. (IPA)

Thursday, 3 May, 2018