‘The integrity and independence of the judiciary is non-negotiable’

ON January 23, Sitaram Yechury, general secretary of the Communist Party of India (Marxist), raised the possibility of an intervention by Parliament to address the issues thrown up at the judges’ press conference. Maintaining that the ideal solution would have been a resolution by the judiciary itself, he said that the three pillars of Indian democracy had a collective and interrelated responsibility to resolve the issues raised by the four senior-most judges of the highest court of the land. He suggested that discussion among the opposition parties was on with regard to this. Excerpts from an interview he gave Frontline :

What is the CPI (M)’s view on the issues raised by the four judges at the January 12 press conference?

The four senior-most judges of the Supreme Court have raised certain very serious issues against the incumbent Chief Justice of India. The press conference that they jointly held is unprecedented in India’s history after Independence. I am not going into the merits or demerits of the issues raised. But these appear to be issues that need to be resolved in the interests of the judiciary and India’s republican democracy.

We had hoped that the judiciary itself would be able to resolve it. Nearly two weeks have passed but there doesn’t seem to be any movement towards its resolution. The issues which are of a serious nature have to be resolved in order to establish and strengthen the independence and integrity of the judiciary. This is non-negotiable and is one of the fundamental foundations of our parliamentary democracy.

Our parliamentary democracy rests on three pillars, the executive, that is the government; the legislature, that is Parliament and with regard to the States, State Assemblies; and the judiciary. Strengthening of Indian parliamentary democracy would mean all these three pillars are independent of each other but at the same time the interrelatedness of all these is maintained. If the judiciary is unable to come to any solution, I believe it is the duty of the legislature to take steps to ensure that the issues raised by the four judges are addressed and resolved. How can this be done? How can the legislature do this? This will require that the charges made by the four judges need to be looked into and the veracity established.

The legislature cannot do this except under one route. That one route in accordance with the Indian Constitution is by Members of Parliament moving an impeachment motion.

This has to be properly understood as I have the experience of moving the motion for the first-ever impeachment of judges in the country, which succeeded. Once the requisite numbers in Parliament, 50 in the case of the Rajya Sabha and 100 in the Lok Sabha, submit a motion to the presiding officers of both Houses, the Chairman and the Speaker respectively, give a notice for impeachment. Once the presiding officer establishes that the procedure laid by the Constitution has been followed, then it is constitutionally mandated that the presiding officer constitutes a three-member committee comprising a sitting Supreme Court judge, a sitting Chief Justice of a High Court, and an eminent jurist.

This committee will examine the charges made in the motion for impeachment and conduct an inquiry to establish the facts. Once the committee’s report is available to the Chairman and this committee comes to a conclusion that there is something amiss, only then the matter will proceed. If the committee says the charges are baseless, that’s the end of the matter. But if the committee establishes to the contrary, the motion will be adopted and then the M.P. whose signature appears first on the motion will be asked to move the impeachment motion formally inside the House.

The House is seized of the matter and the motion is moved on the floor of the House and debate takes place. The House converts itself into a Bar and the judge concerned will appear before it as if he is appearing before a full judicial Bar. The judge concerned will have his full say in his defence and only after that, a discussion will start among the M.Ps and then on that basis, a vote will be taken.

It can never be that immediately after the motion is moved, it will come up for hearing and the matter will be decided. I only said and I still maintain that the only way the legislature can play a role and resolve this impasse is by this method. This is the only way in which Parliament can institute an inquiry, the only option for the legislature to intervene.

It is not as if impeachment is around the corner. Last time, it took more than two years for the committee to establish the allegations about that judge concerned. It is a long procedure. The framers of the Constitution have laid down a long procedure deliberately so that the impeachment of judges does not become a trivial matter.

Certain political parties are very concerned as to what is happening to the judiciary and therefore consultations have begun on what is to be done.

By the beginning of the Budget session that commences on January 29, things will be clearer whether an impeachment motion is coming or not.

Are all political parties on board on this? The ruling NDA government does not seem to be in favour of it. A certain consensus will be required to push through any such motion.

Once the requisite number of signatures are collected, the matter will have to proceed further. Some people say the CJI [Chief Justice of India] is going to retire soon. But the point is not against any individual, the point is about the system. It is not about targeting the present CJI. It is a question of correcting the system.

There was this opinion that the press conference itself was not proper and that the judiciary should have settled it within itself and that politicians and political parties should stay out of it.

All of us wish that the judiciary settles this. As it is not happening, it is the responsibility of Parliament too to ensure that if there is anything wrong in the system, it is addressed and corrected.

Even while not touching on the specific issues raised, the threat to Indian democracy was alluded to in the press conference.

The basic authority to allocate which case to which bench rests with the Chief Justice of India. The charge that is being levelled is that in the choice with some benches, there seems to be some degree of non-transparency. Why is this being done, we don’t know. If this is true, then this has to be settled. How to do it? Who will do it? If the judiciary can do it, it is best. If it cannot, then all democratic structures have to come together to do it. The integrity and independence of the judiciary is non-negotiable; that has to be upheld.

The form was questioned. That they should not have gone to the press.

They are all honourable judges of the Supreme Court. They are the senior-most judges. Unless they were so moved to undertake such a step, I am sure this would not have happened. The fact that they were so moved to do this gives rise to the fear about the integrity and independence of the judiciary being compromised. It is that fear that we would want to erase from the people’s perception. I said it can be done only by an inquiry and for that sort of an inquiry only the legislature can intervene in a particular [the process of impeachment] manner.

Ideally they should sort it out themselves. We want them to do it. But if they are unable to, isn’t it the responsibility of all the three wings of our parliamentary democracy to come together and correct the perception that something is wrong with the judiciary? The issue is not whether an impeachment motion will be moved or not, but whether the issues they have raised are serious enough to be inquired into. The intervention by the legislature is only a move towards starting the process.

There have been precedents earlier of moving such motions, and not all have resulted in successful impeachments.

In Justice V. Ramaswami’s case, the first case of an impeachment motion in Parliament, the motion was defeated in the Lok Sabha. The only instance where it was carried through by a vote in the Rajya Sabha was in Justice Soumitra Sen’s case, but even before the motion could be taken up by the Lok Sabha, he resigned. The intervention by the legislature should be interpreted as only starting the process.