Move to impeach will have no winners

Seven political parties led by the Congress had submitted a motion signed by over 60 lawmakers on Friday 20 April calling for the impeachment of the CJI six months before he retires on five charges

Satish Misra

On expected lines, Rajya Sabha Chairman M Venkaiah Naidu, working overtime, on Monday April 23 rejected the opposition move to impeach Chief Justice of India (CJI) Dipak Misra thus putting a lid on the politically explosive issue within a record time.

Seven political parties led by the Congress had submitted a motion signed by over 60 lawmakers on Friday 20 April calling for the impeachment of the CJI six months before he retires on five charges. In a 10-page note, Naidu said:” “All facts as stated in the motion don’t make out a case which can lead any reasonable mind to conclude that Chief Justice on these facts can be ever held guilty of misbehavior.”

Move to impeach had to meet this fate. It was clear from the beginning that the motion had neither numbers on their side nor had “substantial merit” in their charges. However, whether the opposition should have taken the step or not is open to debate. There are powerful arguments on both sides.

There is no doubt that country’s judiciary including the Supreme Court is facing a grave existential crisis. In an unprecedented step, apex court’s four senior most judges had held a press conference on January 12 this year highlighting some serious issues being currently faced by the country’s judicial system. They had raised an accusing finger at the CJI Misra also.

In fact, the executive, legislature and judiciary- the three pillars of democracy whose separation of powers is mandated in the Constitution, are facing serious challenges. The three have been overstepping on each other’s turf for sometimes now and this is at the root of the present confrontation.

Country’s judiciary is terribly short of resources. It is terribly under-staffed. This has resulted in clogging of the judicial system with cases remaining undecided for decades thus eroding the popular trust in the legal system of the country. Almost nothing or very little is being done by the executive of the day to address multiple problems faced by the judiciary.

Corruption is as rampant in the judiciary particularly at the lower and middle levels as in other fields of country’s professional life. Even the Supreme Court is not immune from graft and corruption. Confrontation between the executive and judiciary has been growing over the years. Political parties especially the BJP and the Congress were on the same page on having a role for the executive of the day in the appointment of judges to High Courts and the apex court.

Immediately after assuming power, the Modi government enacted a law for setting up a National Judicial Appointments Commission (NJAC) that ensured the executive’s decisive role in the appointment and transfer of judges in the higher courts. The NJAC came into existence after the Lok Sabha passed the 99th constitution Amendment Bill on 13 August 2014 and the Rajya Sabha gave its approval on 14 August 2014.

The NJAC came into operation after 16 states ratified it through their legislatures and President Prnaab Mukherjee put his signature on it on 31 December 2014. The NJAC Act sought to replace the collegium for the appointment of judges with a commission that had representation from the executive also.

However, a Constitution Bench of the Supreme Court consisting of five judges struck down the NJAC Act by a majority of 4:1 on 16 October 2015 declaring it as unconstitutional. Chief Justices J S Kehar, M B Lokur, Kurien Joseph and Adarsh Kumar Goel had declared the 99th Amendment and NJAC Act unconstitutional while Justice Jasti Chelameswar upheld it.

Tug of war between the Supreme Court and the Modi government has been continuing since. While recommendations of appointment of judges to the high courts and Supreme Court by the collegium are being delayed and are not being accepted by the executive but there, are other pressing issues that have negatively affected the relations between the government and the apex court?

When courts were approached for an independent probe into the circumstances of the death of Judge B H Loya in 2014 who was deciding on murder charges against BJP chief Amit Shah, doubts were raised on the role of the Justice Misra. The Supreme Court decided to hear the PIL demanding a probe. Justice Misra, being the master of the roaster, brought the case to a bench headed by him.

Fact that Justice Misra chose to hear the issue that involved the BJP president became a source of contention. Four senior judges of the apex court registered their disagreement on Justice Misra’s decision to take up the issue on his bench during their interaction with the media at the beginning of the year. Credibility of Justice Misra came under question in public perception and therefore it was necessary that the CJI had taken extra care to dispel that impression but he chose to act otherwise.

The impeachment motion also charged the CJI for “abuse of exercise of power” in choosing to send sensitive matters to particular benches by “misusing his authority as Master of the Roster with the likely intent to influence the outcome”.

Though the Vice President has rejected the motion, yet the issue of the credibility of the CJI and the government’s efforts to covertly or overtly undermine the independence of judiciary is going to remain in public domain.

The opposition is going to take the matter to the Supreme Court for ensuring that the issue does not fade away from public memory. Impeachment move strengthens the ongoing political narrative of the opposition that the Modi government is against democracy and country’s Constitution. The RSS controlled BJP is weakening the democratic institutions like parliament and is destroying other institutions by undermining their autonomy and independence.

Whether one likes it or not, it is a fact that both the BJP led NDA and the Congress led opposition are playing politics in general and on the impeachment issue in particular, Both are making determined efforts to win the popular mind so that electoral war could be won.

Dr. Satish Misra is a Veteran Journalist & Research Associate with Observer Research Foundation.

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