Institutions run on procedures and survive on public faith. The Supreme Court runs on the faith of millions of people and is expected to deliver justice. It’s the guardian of constitutional values and gives judgments on various issues apolitically upholding the "rule of law".
While we sit and calculate the way ahead for the impeachment motion by opposition parties and its possible fate, the impeachment of CJI and the Supreme Court has already happened in the court of public perception.
The court of public perception is not taken lightly in the field of law. So while hearsay is no evidence, the justice must also be "seen" to be done. The thrust of law on public perception is to instill democratic and constitutional values. It exists to to set high standards of morality through personal conduct of judges.
This morality inspires citizens to think dispassionately and uphold higher principles beyond individual interests. In the court of that crucial public perception, the top court has already lost the battle. The impeachment of faith is already done and the CJI office seems "convicted".
The reason of this fall can be attributed to failure of the top court to reform with time. "Setting the house in order and resolving issues internally" seem archaic to me. Institutions must reform and evolve processes to ensure accountability. When the top court, which is supposed to ensure that transparency and equity are upheld in every walk of life, fails to devise a transparent procedure to appoint judges and run the court, how can people expect justice from those facing allegations of being unjust?
The dark truths and internal rumblings within the top judiciary are out in the open. The administration of the Supreme Court or assigning benches to crucial cases remains completely a prerogative with the CJI with no explicit procedure laid down.
When CJI Dipak Misra had an ugly exchange with senior advocate Prashant Bhushan on November 10, 2017, before a bench of five judges, the fall seemed evident.
Jeering, name-calling and loud exchanges rent the air as CJI Dipak Misra went ahead and overturned the order of justice J Chelameswar in the medical admission scam case. Someone from the visitors' gallery had whispered to me that day, "Doesn’t it look like Parliament? Hope they don't start hurling chairs at each other?"
That day the dignity of the court was offended by many and ever since there has been a point of no return. Four judges spoke out on January 12 and the rest is history.
The judgments of the Supreme Court are sometimes deeply unpopular. The executive is expected to throw its weight behind the judgment to ensure implementation. There is a moral argument when the apex court seeks to implement its orders. The argument is that the judgment is the "right" way or ensures "justice", however politically inconvenient it might be. The moral force weakens when the Supreme Court comes under assault, especially when the trouble is homegrown.
Each time the Supreme Court has stood up to the executive, history has judged it highly. Each time it crawled, like during Emergency, history hasn’t forgiven or forgotten.
The four top judges of the Supreme Court who came out in that press conference wanted a reform and expressed helplessness. Their intent was only to protect the institution. But if one looks closely, ever since that press conference, it’s only the political class which has benefitted.
The ruling party has an openly divided the Supreme Court. A divided house cannot negotiate a memorandum of procedure with a stubborn government which doesn’t want to let go any powers. The constant back and forth on judicial appointments also requires a strong collegium to stand up to the government. A weak or divided court only benefits the government.
On the other hand, the Opposition has found another tool for political gimmicks. The Congress is itself divided on the issue internally as to whether an impeachment should be brought or not.
To conclude, if one digs deeply into the basis of the entire constitutional structure, it's based on nothing but faith. That seems to be fading away. The judiciary has lost the main battle even though the wars continue.
The onslaught on the CJI also impacts the Constitution and democracy. Both need to be protected from politicians consistently. The courts have done that ever since Independence. And when they failed, we called it Emergency.