Executive vs judiciary

Ominous signs

Print edition : May 25, 2018

Congress leaders Kapil Sibal and Ghulam Nabi Azad and CPI leader D. Raja after submitting the opposition's impeachment notice to Vice President M. Venkaiah Naidu against the Chief Justice of India, Dipak Misra, in New Delhi on April 20. Photo: PTI

Recent developments concerning the judiciary, marked by controversial confrontations with the executive, are reminiscent of events that resulted in the Emergency.

FROM time to time, developments in the judiciary have impacted the course of Indian politics over several decades. One of the high points of such an impact was in the events preceding the imposition of the Emergency in 1975, under the Indira Gandhi-led Congress regime. The context of the developments then was a celebrated judgment followed by blatantly improper intervention by the executive in judicial affairs, which, in turn, unravelled unseemly wrangling within the echelons of the judiciary. The manner in which events occurred and finally engulfed the political arena resulted in one of the darkest periods in India’s political history; the Emergency period.

Recent developments in the judiciary have repeatedly evoked memories of the dark era of 1975. While the present happenings are indeed different in terms of finer details, the basic qualitative characteristics of the political play do broadly follow the pattern that resulted in the forbidding political climate 43 years ago.

And, mirroring that period in very many ways, the interplay between the higher judiciary and the executive is now marked by controversy, which, in turn, is creating political tumult in varying degrees of intensity.

While this climate was building up right from the early part of 2018, through murmurs of increasing executive intervention, especially from the top brass of the country’s premier investigating agency, in the day-to-day functioning of the apex court, the first full-blown controversy erupted on January 12 when the four most senior judges of the Supreme Court, Justice Chelameswar, Justice Rajan Gogoi, Justice Madan B. Lokur and Justice Kurian Joseph, held a press conference where they pointedly stated that “many things that are less than desirable happened in the last few months”, adding that “unless this institution [Supreme Court] is preserved and it maintains its equanimity, democracy will not survive in this country”.

Justice Chelameswar emphasised that the hallmark of a good democracy was an “independent and impartial judge”. Although there was no open accusation, it was evident that the judges were pointing fingers at Chief Justice of India (CJI) Dipak Misra.

Political reactions

Political reactions to the judges’ press conference were immediate and almost all opposition parties took up the issue in no time. The principal opposition Congress’ response was piloted by party president Rahul Gandhi himself, who said in a statement that the matters raised by the judges were extremely disturbing. He said that the issues raised by them should be addressed by the full court.

The Congress president also linked the judges’ press conference to a petition demanding investigation into the death of Maharashtra judge Brijgopal Harkishan Loya and demanded that the petition be heard by the most senior judges of the Supreme Court and not designated to junior judges, as CJI Dipak Misra was doing. He also wanted an independent special investigation team to look into judge Loya’s death. Special Central Bureau of Investigation (CBI) judge Loya died in December 2014 while hearing the Sohrabuddin Sheikh fake encounter case, in which Bharatiya Janata Party (BJP) president Amit Shah is one of the accused.

Opposition leaders such as Sitaram Yechury, general secretary of the Communist Party of India (Marxist), were quick to grasp that the political import of the unprecedented public press conference of the four judges was such that reaction to it could not be limited to a press statement or token interaction with the media.

Yechury stressed on the larger and historic political dimensions of the press conference, pointing out that the judges had called for intervention from the people and society as a whole to protect and preserve the judiciary and democracy in the country.

“This call necessitates a concrete, cogent response and this can be achieved only through proactive action at different levels,” he told opposition leaders as well as the media immediately after the press conference. With this premise, he began making preparations to move for the CJI’s impeachment, apparently with the expectation that opposition parties would quickly rally around the move.

Divergent perceptions

However, the move picked up momentum only after two and a half months because of divergent perceptions within the opposition leadership on the issue. Yechury’s proposal had evoked an immediate and positive response from a clutch of parties, including the Samajwadi Party (S.P.), the Bahujan Samaj Party (BSP), the Communist Party of India (CPI), the Nationalist Congress Party (NCP) and the Indian Union Muslim League (IUML). However, the principal opposition Congress as well as the Trinamool Congress (TMC) and the Dravida Munnetra Kazhagam (DMK) were not ready to support the move immediately.

Indications were that the Congress had apprehensions and reservations essentially on two counts. First, the party leadership was not sure whether impeachment of the CJI would be a worthwhile political exercise because it was bound to be defeated given the numbers in both Houses of Parliament.

Second, the party was divided on pushing the case against CJI Misra forcefully, particularly because many Congress leaders had strong familial and social ties with him. So, there was tarrying in the opposition ranks for a considerable length of time. This tarrying was marked by hectic discussions within the Congress leadership as well as within its organisational hierarchy between those who advocated impeachment of the CJI and those who expressed reservations about it.

These discussions moved to a conclusion around the second week of April, with those who wanted to go ahead with the impeachment motion gaining the upper hand. The party started coordinating with other opposition parties in jointly taking up and advancing the proposal to move for impeachment originally made by Yechury. As these moves were being concretised, the verdict came on the pleas seeking an independent probe into the death of judge Loya.

On April 19, a three-judge bench comprising CJI Dipak Misra, Justice D.Y. Chandrachud and Justice A.M. Khanwilkar dismissed the pleas, ruling that judge Loya had died of natural causes, and saying that the petitions seeking to raise suspicions on the events leading to his death were a “serious attempt to scandalise and obstruct the course of justice”.

Dismissal of pleas

The dismissal of the pleas was celebrated by the BJP with much brouhaha. Ravi Shankar Prasad, Union Minister for Law and Justice, went to the extent of demanding an apology from Rahul Gandhi for what he portrayed as “despicable attempts to politicise the case and give BJP president Amit Shah a bad name”. The judgment and a vociferous campaign on its basis shook the Congress so much that it was impelled to hasten the movement of the impeachment motion.

Ultimately, the motion for removal of the CJI was submitted to Rajya Sabha Chairman M. Venkaiah Naidu on April 20 by seven opposition parties. A total of 71 Rajya Sabha members belonging to parties such as the Congress, the NCP, the CPI, the CPI(M), the S.P., the BSP and the IUML had signed the motion. The TMC and the DMK persisted with their standoffish line on the motion.

However, the motion was rejected by Venkaiah Naidu in three days, virtually passing a judgment of sorts on the allegations against the CJI.

Venkaiah Naidu cited various reasons for blocking the move by the opposition parties, including the assessment that “the phrases used by the Members of Parliament themselves indicate a mere suspicion, a conjecture or an assumption” and that the “same certainly does not constitute proof beyond reasonable doubt, which is required to make out a case of proved misbehaviour”.

He was also of the view that “the allegations emerging from the present case have a serious tendency of undermining the independence of the judiciary” and could “create disaffection and disrespect for the authority of the court”.

Close on the heels of this rejection was the refusal of the Union government to accept the recommendation of the Supreme Court collegium to elevate the Chief Justice of the Uttarakhand High Court, Justice K.M. Joseph, to the apex court, citing strikingly fallacious reasons, including one arguing that his parent High Court of Kerala had adequate representation in the Supreme Court.

As expected, the Union Law Ministry’s rejection of the collegium’s proposal was welcomed by CJI Misra, within hours of the Ministry’s order. Clearly, the goings-on in the higher echelons of the judiciary have become part and parcel of political proceedings at the national level. In the process, there is a growing confrontation with the executive and the political system that is driven by the executive, which, in turn, is marked by a rising sense of foreboding.

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