The simmering discontent among the judges and the bar at the apex judiciary has turned into a conflagration of sorts which the Supreme Court has never seen in its more than six decades of history. Few would have imagined that a letter written by four senior-most judges of the court to Chief Justice of India Dipak Misra would start the worst crisis in the constitutional history since the 1975 emergency.
The impeachment motion moved by 71 members of Parliament is before the Vice-President, who has to take a decision on it. Seven parties have joined the move to remove the CJI, invoking Article 124 of the Constitution, which lays down a complicated procedure for it. Several important parties have kept away from the campaign.
There have been six attempts to impeach judges of the constitutional courts, all of which had fizzled out. The only Supreme Court judge to face the agony was V Ramaswami in 1993. The CJI took away work from him but the motion in Parliament failed. Some judges like Chief Justice P D Dinakaran of the Sikkim High Court (2011) and Justice Soumitra Sen of the Calcutta High Court (2011) resigned before the motion reached Parliament.
The path to the removal of the present CJI is strewn with imponderable hurdles. All that one can be sure of is that the image of the institution will be tarnished anyway. The extreme step of impeachment must be justified with proof of “misbehaviour or incapacity”. A panel will investigate to find whether the five charges stand the test of misbehaviour in the present case before Parliament takes up the motion. Even if the Vice-President gives the go-ahead, Parliament will have to debate it, and then the motion must be voted by a majority in each house and two-third members present and voting. With several opposition parties staying away from the move and the ruling BJP having a comfortable majority, the fate of the motion is predictable.
What's unique about the present crisis is that the first salvo came from the court itself. Then a cavalry of lawyers took up the war cry on the basis of what is happening in the apex court itself. Four judges saw sensitive cases being assigned to Benches without following the revered conventions. They saw dangers to democracy in the manner of assignment of cases and sidelining of senior judges in favour of 16th and 17th in the hierarchy. Some of the allegations have stuck, though it is doubtful whether they add up to the constitutional requirement of proved misbehaviour.
One of the main grievances is that the Constitution Bench of the CJI is holding all the important cases in which the government has high stakes. His Bench is currently hearing the Aadhaar case, which started in January and may go on till the end of this month. Then the Bench has about nine other constitutional cases like whether charge-sheeted lawmakers can be disqualified and some questions on land acquisition on which judges have not only differed but said decisions were taken without due care of law (per incuriam).
With the term of the CJI ending on October 2, the question being asked at the bar of the Supreme Court is whether he would be able to deliver judgments in the six months left, minus the coming summer vacation. Justice Jasti Chelameswar, who was in the forefront of the rebellion against the CJI, has wryly commented that if the CJI thinks he has the energy to do the entire work, let him do it.
Dipak Misra. Illustration: Ajay Mohanty
The four rebel judges are peeved by the fact that the CJI has claimed unlimited discretion under the convention of ‘master of the roster'. This issue has split the judiciary and jurists wide open. The criticism sharpened when the CJI Bench delivered two judgments asserting the primacy of the CJI in assigning cases. Curiously, these judgments were delivered by Benches presided over by the CJI himself. This attracted more flak because the CJI in all fairness should have recused himself when the extent of his powers was the issue before his Bench.
The two judgments reiterated the well-accepted convention that the CJI was the 'master of the roster' and he had large discretion in the matter of forming Benches. However, it is only a convention which can be changed like many others. And the CJI’s discretion is not unfettered in the modern context. The court has insisted in judgments over decades that the discretion of any authority is circumscribed by fairness and non-arbitrariness. In this context, old-timers remember one CJI who was seen collecting all financial cases from other Benches in his 20 days of glory and granted relief to the corporates.
Another issue is the gridlock over a ‘memorandum of procedure’ about selecting judges to the higher judiciary. This mechanism was suggested three years ago in a judgment when the court struck down the law to recruit judges. However, the collegium of judges in the Supreme Court and the government have not been able to see eye to eye on this matter. Some senior judges perceive this as the government’s attempt to deny the primacy of the judiciary asserted in that judgment. Both Justice Chelameswar and another senior judge, Justice Kurian Joseph, have written to the CJI, asking for a judicial solution to nip this subtle move by the government. These judges have not hesitated to come out into the open with letters and media interviews which were unknown to the august institution.
The frustration caused by these events and those which occur in the dark outside the view of the public have led to the impeachment move. Senior lawyer Fali Nariman, who has seen the court for four decades, has given sage advice: Wait till Justice Dipak Misra retires. But a section of the bar and lawmakers cannot.
A trust deficit is evident. The collegiality of the judges is in such ruins that the new apprehension is whether CJI Misra would follow the convention and recommend the name of the next in line, Justice Ranjan Gogoi, to be the next CJI. After all, Justice Gogoi was among the four who had addressed the media raising the war cry that judicial independence must be defended with all might. A supersession would be unimaginable in the last year of the current government.
The task before the next CJI will be extremely tough. He has to start building new conventions with a consensus among his brethren, restore comity among them, remove apprehensions of bowing to the executive, repair relationship with the new government, and, above all, reassure the nation that the institution has healed itself though it might carry a few new scars along with the old ones.