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Do we have justiciable evidence against CJI Dipak Misra?

The charge against Chief Justice Dipak Misra is serious. But do we have justiciable evidence?

Written by Pratap Bhanu Mehta | Updated: January 15, 2018 11:00 am
Supreme court, SC judges, CJI, Dipak Misra, CJI SC, SC judges revolt, Jasti Chelameswar, anjan Gogoi, Madan B Lokur, Kurian Joseph, democracy, indian democracy, SC judges meet, India news, Indian express news Supreme Court (File)

In times of deep institutional crisis the invocation of moral conscience, a reminder that posterity will adversely judge those who sold their souls is, on the face of it, an important and courageous gesture. Four Supreme Court Justices, with formidable reputations, have taken the unprecedented step of going public with their disquiet about the chief justice. They have confirmed that the Supreme Court is facing a serious crisis of legitimacy. Their concerns deserve serious attention. If handled well, this could be a moment for the regeneration of the Court. But Indian institutions are also replete with examples where self-validating moral consciences quickly descend into a grammar of anarchy. The challenge will be to ensure that this does not happen.

This case is particularly tricky because of the nature of the charge. The core issue in this instance is that the justices have lost confidence in the chief justice, Dipak Misra. They are alleging grave misconduct on his part. In that sense, the allegations are personal. Long-standing structural issues relating to the power of chief justices, Memorandum of Procedure, appointments, etc are in the backdrop of this case. The Court has been acting arbitrarily in a lot of cases. This crisis has been built up over a number of years with the complicity of a large number of justices. But this case is not about these issues. The judges can institutionally advocate reform. Some of the individuals will also, as future chief justices, have opportunities to initiate reform. Debate or advocacy over judicial reform does not require this kind of a public accusation. The core issue in this instance is the conduct of this particular chief justice.

This column is no fan of the chief justice. But we have to carefully parse out the issues. The core claim seems to be the chief justice has departed from convention and seems to be allocating cases in ways his colleagues find objectionable. But the gravity of this charge comes from two implications. First, that this is not just a departure from convention but an attempt to fix cases or manipulate the outcome, perhaps in politically sensitive cases.

The charges are serious only for this reason. Otherwise, the most you can accuse the chief justice of is lack of administrative skills and lack of judgement when it comes to handling processes. These are not trivial matters. But if it were merely these matters, they could have held their noses for a bit. It is only when you think that the stench of wrong doing is so overwhelming that you go public.

Supreme court, SC judges, CJI, Dipak Misra, CJI SC, SC judges revolt, Jasti Chelameswar, anjan Gogoi, Madan B Lokur, Kurian Joseph, democracy, indian democracy, SC judges meet, India news, Indian express news Justice Chelameswar, Ranjan Gogoi, Madan Lokur and Kurian Joseph at the press conference. (Express Photo/Abhinav Saha)

The second implication is that those judges to whom cases are being assigned will also somehow, at least in the chief justice’s mind, be amenable to being fixed. So the issue is not just four justices versus the chief justice. The issue is four justices questioning not just the integrity of the chief justice, but also by implication, of their colleagues. We are disposed to believe the truth of these accusations because there is a distrust in the integrity of the Court (like there was distrust of politicians).

But two difficulties arise. How do we adjudicate this core accusation? The charge is serious. For all we know, it may very well be true. But do we have justiciable evidence? The charge is so serious, that if there is evidence, it warrants formal proceedings against the chief justice. If any political party has evidence that the chief justice has exercised his discretion to “fix” cases, they should initiate impeachment proceedings. And the judges who went public will have to be material witnesses.

On the other hand, if the charge does not rise to this level of seriousness, or there is no justiciable evidence, then is it right to accuse the chief justice of wrongdoing publicly? The justiciable standard may be too high, but it is the only one that can apply when such a grave accusation is made. Or else you have the grammar of anarchy. It is alarming when legal luminaries from judges to lawyers, now use hearsay to pronounce guilt or innocence. Or the entire discourse has become about inferring motives. Poor Justice Karnan must be wondering why his more direct accusations against judges invited contempt.

Supreme court, SC judges, CJI, Dipak Misra, CJI SC, SC judges revolt, Jasti Chelameswar, anjan Gogoi, Madan B Lokur, Kurian Joseph, democracy, indian democracy, SC judges meet, India news, Indian express news The core issue in this instance is that the justices have lost confidence in the chief justice, Dipak Misra (File)

There is no half-way house when it comes to guilt or innocence. The judge’s press conference, and the artfully evasive letter, seem to suggest there is. But now that they have gone public, they have to follow through on the seriousness of the charge; otherwise this is just pressure tactics. It is dangerous pressure tactics because one implication will be that any “pro-government” decision on a bench allotted by the chief justice, will now have the imprimatur of doubt over it.

But the question is who will do the adjudication of the chief justice’s guilt? There is now no way of avoiding this question. The second dilemma is this. It is a good thing that everyone talking about institutional reform. Some, like a little more formalisation of the powers of the chief justice, are good things.

But given the nature of the accusation, those reforms are not what is at stake here. What is at stake is: How do you punish an errant chief justice? The Constitution secured the independence of the judiciary by making it nearly impossible to act against judges. The question is: Do you want to lower that protection? On the one hand, the implicit claim is that, as it is, the government is finding it easy to influence the judiciary.

Will giving the government more role in appointing judges or disciplining them weaken or strengthen judicial independence? So the dilemma will be this. The judiciary’s spectacular own-goal will increase calls for new mechanisms of accountability. But will those new mechanisms weaken or strengthen judicial independence? The political thrust of the current crisis and the punitive mood within the judiciary will increase the likelihood of reform that will threaten independence.

Can the judiciary recover? If Dipak Misra, as an act of statesmanship, addresses the fact that he has lost the confidence of the collegium and finds ways to recover it, perhaps. But this is unlikely. Taking charges the logical conclusion will be difficult. If they don’t follow through, then the whole drama becomes a saga of pressure tactics, intrigue and innuendo. The future does not look good. The usual Indian solution will be to sit out the crisis. The only silver lining is that in a year with so many important cases, the judiciary can redeem itself by the cogency of its reasoning and display its integrity.

This first appeared in print under the headline ‘A chance to reform’.

The writer is vice-chancellor of Ashoka University. Views are personal

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  1. Sarat Pattanayak
    Feb 1, 2018 at 3:50 pm
    I have never read such a rambling, incoherent article in quite a long time. Goodness me, how did it escape the editor’s scissors? Are these writers paid according to the length of their articles? Plainly, the article is more passionate than forensic. There is a yawning vacuum of ideas in the whole story. Truly, article-writing has become a timepass for some pseudo-intellectuals.
    1. S
      Jan 16, 2018 at 12:21 pm
      we in the supreme court are the final authority not because we are correct but we are correct because we are the final authority!formerCJI Justice chandrachhod
      1. V V
        Jan 16, 2018 at 11:40 am
        They will certaily be judged after 20 years, but adveresly.....judges who sold their souls who lacked such emotional intelligence and maturity, how did they become the judge that too Supreme Court.....kya aisa tha hamara India!!!!
        1. rishi
          Jan 16, 2018 at 12:52 am
          "who grabs the headlines" is the issue.......as evident from the way congressi and cpi scavengers along with other bankrupt members of the opposition pounced on the muck thrown by the four scoundrels of the judiciary! Time shall tell who the billion-plus well-wishers of the Nation make accountable for the joke played on the Indian tax-payer who pays for the high s-a-laries and l-u-x-urious perks of the judges . To my understanding, it was at best an anti-NDA rhetoric as all that transpired before, during and after the media address by the four scoundrels points to....there was certainly NO JUDICIAL CRISIS of the magnitude it was made out to be by the four scoundrels......it was a creation to provide headlines to the opposition against the current dispensation.....and to that extent it succeeded in its purpose so far.....it is for the NDA to respond with the same degree of toughness that it showed against corruption....this is a case of indiscipline and fooling the people !
          1. rishi
            Jan 16, 2018 at 1:47 am
            raghuram rajan was rightly shown the door when he digressed into tolerance-intolerance politics....we need to see what punishment is meted to these four scoundrels for openly indulging in anti-NDA rhetorics under cover of imagined "judicial crisis" where there wqas none as evident from the swiftness with which the reconciliation came and the the matter of so-called "judicial crisis" was brushed under the carpet....all within 72hrs and without a whimper but from the bankrupt opposition scavengers who did pounce on the unpardonable practical-joke played by the four scoundrels on the tax-payers of the Nation.
            1. V V
              Jan 16, 2018 at 11:43 am
              He was not shown the door, GOI wanted him for next tenure that is 2 or 3 years but this Bond wanted only 6 months, he was told then that you are not a Bond actually, you are Raghuram Rajan......
              1. rishi
                Jan 16, 2018 at 4:27 pm
                VV...that's NDA's statesmanship...giving a graceful exit route to everyone !
            2. Indian Bharat
              Jan 16, 2018 at 12:23 am
              This shameless corrupt culprit CJI Depak Mishra should step down because of whom all this happen. He was not following SC system and passing case to lower bench of his chella to get decision in favour of his political aka. All the cases refer by him should reinvestigate and clean correct judgement should come out. If found gulti CJI should be behind bar for his role. Jai Hind
              1. Sridhar Krishnan
                Jan 16, 2018 at 2:15 pm
                It is now well established that CJI has been following a convention as per his predecessors. Instances of so called 'sensitive' cases being allocated to the so called 'junior' judges are too many. Examples are 2G Coal scam cases! To allege corruption, we need prima facie actionable evidence. Alleging vaguely without backing it up with substance is street corner business and outright irresponsible something that the gang of 4 seems to have indulged in. Even now it isn't too late. They can bring out specific details with evidences (other than perceptions) and ask for action. They can resign from their positions as a matter of protest to show their sincerity in standing up for this cause of cleaning up the court. On the contrary, if they choose to patch up, reconcile compromise, what does it mean? Wouldn't it have amounted to playing a big joke on the Indian people? Are we fools to be taken for granted that you would come out say nanny stories giving us a terrible scare that our....
                1. rishi
                  Jan 16, 2018 at 4:29 pm
                  the CJI must stand strong and unmoved......it is in the interest of the judiciary of a billion-plus Nation.
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