Move to impeach CJI will only yield losers

Impeachment has become an expensive farce — politically convoluted, episodic, lacking in due process and unmitigated in its expanse and uncertainties.

 |  5-minute read |   30-04-2018
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The motion to impeach chief justice of India (CJI) Dipak Misra is a tragedy foretold. There are no winners, only losers. CJI Misra may have got a reprieve, but in the end, he loses out. His reputation is besmirched. The charges of possible conspiracy, antedating orders, land allotment on false grounds, bench fixing are only allegations.

BJP’s political gimmick

All that can be said is: Not proved at trial. As Iago in Othello puts it: “He who steals my purse, steals trash. But he who takes away my good name takes that which enriches him but makes me poor indeed”. The band of 64 MPs in Opposition were charging at the windmill but was it there. Of course, the charges were serious, prefaced necessarily by prima facie "ifs" and "buts".

But their effect was damning. vice-president Venkaiah Naidu rejected the motion based on advisory intelligence, displaying his political colours, attacking irrelevant pot holes. There is no victory for him or his office.

Divisions in the Congress (Khurshid, Ashwini Kumar and others) come out as champions for the judiciary, only to make a statement without examining the truth value, adding to the political fiasco.

The detractors of the CJI are vociferous in their allegations but too relentless to be accepted as gospel. The BJP is trying to get political mileage out of this at a time of elections. Everybody is convinced, nobody convinces. Four senior lawyers — Nariman, Sorabji, Jethmalani, Salve — claim crusader status although Nariman rightly treats this as an issue of judicial independence from the government.

On July 29, 1947, AK Ayyar, in the Constituent Assembly, felt that the best testimony to such power is that it has never been exercised... not intended to be used frequently. “In fact, one criticism of the procedure was that due process elements were missing (and) left to the goodwill of Parliament”.

Both the MP process and Naidu reveal the weakness of the Constitutional provisions and the Judges (Inquiry) Act, 1968. "tit for tat" politics is written into the process.

So far, there have been four evidences that illustrate this: V Ramaswamy was protected by the Congress in the Lok Sabha, Soumitra Sen and Dinakaran resigned at different stages of the impeachment proceedings. Pardiwala retracted his judicial statement on reservation after 58 Rajya Sabha MPs moved a motion.

Gangele’s impeachment went through four committees but resolved in his favour. In 1969-70 the vice-president stayed the impeachment process against justice Shah. In 1989, the memorandum of five senior Indian lawyers argued for a better system which never came.

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An expensive farce

Impeachment has become an expensive farce — politically convoluted, episodic, lacking in due process and unmitigated in its expanse and uncertainties. During the V Ramaswamy allegations, the Justice Venkatachaliah Committee of November 6, 1990, felt that there was no occasion to deny the accused judge discharging his duties.

Accepted by CJI Ranganath Misra, CJI Mukharji persuaded him otherwise. It is obvious that until charges are framed by the committee, the judge can function.

To say he should desist from administrative work before the Committee frames charge is absurd. In 1965 CJI Gajendragadkar (Mitter’s case) thought not assigning work to be imprudent.

Yet, public confidence cannot be undermined. Our present system of dealing with judges is bad. Even the in-house procedure does not seem to be fair. How could CJI Misra have reported Allahabad Justice SN Shukla to the president for removal. This short changes even the impeachment procedure.

The truth is that we lack a proper procedure for complaints. America’s Judicial Councils Reform and Judicial Conduct and Disability Act, 1980, for federal judges are a pointer of examining judicial conduct. Of course, the American system through more rigorous produces some piquant results. Justice Claiborne received his salary (then $78,000) while in prison.

Autonomy threatened

The present impeachment initiative has undermined the independence of the judiciary. Everything is in a state of flux. The real controversy is not whether the CJI is a “master of the roster” or “mistress of the law”.

Was CJI Thakur bullied by standoffs? Did CJI’s Khehar and Misra echo what the government wanted listed? The triple talaq case (in the vacation), Muslim polygamy, Loya case, Babri Masjid fall into a pattern.

No Supreme Court can follow an agenda dictated by the government. Independence of the judiciary is threatened in certain critical areas. Today, the BJP-led NDA is dictating to the Supreme Court who it wants as HC and SC judges.

The case of KM Thomas being stone walled is obvious. The decision of the collegium is final. Law minister Prasad ill deserves to block an appointment. If the government takes over, the very concept of judicial independence is lost.

It does not matter – except as reminder — the Congress invoked supercessions in 1973 and 1978 or that Congress ministers tried to take charge on appointments and transfers.

We are now in 2018 and cannot sustain any hawkish interference by the government on appointments. If the judiciary becomes “captive” or “committed” beyond the constitution, Indian democracy is in peril.

It is the duty of the CJI to carry his colleagues – beyond the vanity of power. The stalled impeachment proceedings deserve quietude. What needs to be settled for future is a rigorous independent process to tackle complaints against judges and government’s interference in the judiciary. In present controversy, the BJP has abused power and used every trick to interfere.

(Courtesy of Mail Today)

Also read: What's being cooked for Yogi Adityanath in Dalit homes?

Writer

Rajeev Dhavan Rajeev Dhavan

Supreme Court lawyer.

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