On Friday, seven political parties, including the Congress, submitted a notice for initiating a motion to remove the sitting Chief Justice of India (CJI), Dipak Misra. On Monday, the notice was rejected by the Rajya Sabha chairman. The Congress and other six parties are planning to move the Supreme Court against the rejection. But it will now be on Misra himself to assign the case to a bench.
In a way, things have moved full circle since the unprecedented press conference called by the four seniormost puisne judges of the Supreme Court on 12 January to air their grievances against the CJI. At the heart of the matter was the perceived arbitrariness in allocation of cases to different benches by the CJI in his capacity as the master of the roster. It was insinuated by those four judges, and directly alleged by some others, that the CJI was allocating sensitive cases to “junior” judges. The charge of “fixing” verdicts was also floating in the air.
The biggest problem with this entire chain of events is that now each judgement will be open to innuendo. Each verdict will be parsed for excavating the political bias of judges delivering them. Union finance minister Arun Jaitley has termed the notice for removal of the Chief Justice a “revenge petition” by the opposition parties after a three-judge bench presided over by Misra threw out a petition requesting an investigation into the death of Judge B.H. Loya in December 2014. Judge Loya was presiding over the trial of an encounter case involving Amit Shah, the president of the Bharatiya Janata Party (BJP). While dismissing the petition, the court made scathing remarks against the petitioners’ “veiled attempt to launch a frontal attack on the independence of the judiciary and to dilute the credibility of judicial institutions”.
Another problem with the move of the opposition parties is the kind of precedent it sets. Moving a notice for the removal of a judge is no trivial matter. Once each judgement is open to being interpreted politically, the political parties feeling out of favour may move a notice for the removal of the judges involved. Paradoxically, this will favour the ruling party. Since it can muster the numbers more easily in Parliament to remove judges, the latter might feel more obligated to keep the ruling party in good humour.
The third problem is that the CJI’s removal does not solve any of the two systemic problems—the allocation of cases and appointment of judges. The two are related. If the allocation of cases to “junior” judges cannot be trusted, doesn’t it raise questions about the process of appointing judges in the first place? The allocation of cases is an administrative issue and should have been resolved internally by the court. The very fact that it has not been resolved internally has opened the door for outsiders to intervene.
The appointment of judges requires greater focus from more than one institution. It is here that the government has to shoulder some blame. This newspaper has consistently argued that the current system of appointments by the collegium is the judiciary’s ploy for self-preservation in the name of judicial independence. But the government erred in framing the alternative. The National Judicial Appointments Commission—which was struck down by the Supreme Court as unconstitutional—should have given a majority say to the judges. Thereafter, the government kept sitting on the memorandum of procedure (MoP) finalized by the collegium for appointments.
In recent weeks, at least two senior Supreme Court judges have been highly critical, and for justifiable reasons, of the Union government for sitting inordinately over recommendations of the collegium. Justice Jasti Chelameswar is clearly unhappy with the government’s alleged attempt to stall the elevation of a Karnataka district and sessions judge to the state high court. Justice Kurian Joseph has also come down heavily on the government for not acting on the collegium’s recommendation to elevate Uttarakhand high court chief justice K.M. Joseph and senior lawyer Indu Malhotra to the Supreme Court bench.
Both Chelameswar and Kurian Joseph were part of the 12 January press conference. The senior judges may have a feeling that the CJI is not strongly taking up the issue of delays in appointments with the government. But it would be unfair to single out the incumbent CJI. The government has been non-responsive on both the MoP and recommendations for appointments and transfers for a long time, spanning the tenure of multiple chief justices. Former chief justice T.S. Thakur even broke down publicly when talking about the government moving slowly on the appointment of judges. The government’s reluctance in K.M. Joseph’s case is a reminder of its attitude towards the elevation of senior lawyer Gopal Subramanium to the bench during R.M. Lodha’s tenure as chief justice.
Even as the government has a lot to answer for, the opposition’s move to remove Misra is entirely unwarranted. The move will most likely fail but it would have weakened public trust in a very important institution—the judiciary. Already, the Election Commission, the Reserve Bank of India and the armed forces have been caught in the political crossfire between the BJP and the opposition parties. The Congress should realize that once in opposition, the BJP too can play the game of discrediting institutions in order to undermine the ruling party. Indian democracy will be a lot better if it avoids that route.
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