Congress leader Kapil Sibal tells The Indian Express why the move to remove the Chief Justice became necessary, and why he will not appear before Dipak Misra any more
The Congress party says the move to impeach Chief Justice of India Dipak Misra emanates from the January 12 press conference by the four seniormost judges of the Supreme Court, and that this is a motion by MPs, and not by the party. But one of the four judges — Justice J Chelameswar — has said that impeachment is not the solution.
There are two elements that are of great concern to us. The first element is the way in which the government is seeking to interfere in judicial processes. That’s been going on for some time. And it was expressed by Chief Justice T S Thakur in no uncertain terms. He also, if you remember, broke down (saying) that all recommendations made by the collegium are being blocked. There are not enough judges. And the judicial system is collapsing. That was carried forward under this Chief Justice when they are sitting on Justice K M Joseph’s recommendation (for elevation to the Supreme Court) on the ground that he is not the seniormost judge in the country, when that’s not a criterion that’s ever been followed, though he is the seniormost Chief Justice. So one matter of great concern is the slow and steady incidents of interference of the government in judicial appointments. What can be the motive — that don’t make an appointment if you think the judge concerned has given a verdict against the government? That’s the message, right? Block all recommendations made if you think that they are not acceptable to the government. That’s a very, very serious matter. We are not concerned for the moment in the impeachment motion with that element. But it tells you how the government intends to control the judiciary.
The second element is that court processes must be untainted. And the judge who performs a God-like function must be above suspicion. I will state this in the words of Mr (Arun) Jaitley. On August 17, 2011, in his speech in Parliament, he said, “When this divine function of deciding the fate of others is bestowed in a judge, we expect him to perform it with the highest standards of scholarship and utmost impartiality. He must be detached from all collateral persuasions.”
He went on to say, “The premise of the utmost impartiality free from aberrations under which institution of judiciary was created is no longer available.” So Mr Jaitley accepts, this is way back in 2011, that the premise of impartiality is no longer available because judges, he said, live in glass houses.
If this is the belief of the present finance minister, so if we in the impeachment motion, not on our own but on the basis that is already in the public domain, have expressed concerns, then he says it is political revenge. I wish to clarify that is a political statement. This is not politics of revenge. That statement is politics. Ours is an attempt to cleanse the system — which is the second element.
You also said all this emanated from the press conference of the four judges. That was not politics of the party. That has nothing to do with those who have signed this motion. And what did these judges say — they said everything is not in order under the present Chief Justice, that democracy is in peril, and we don’t want future generations to say that we did not come out and say what we had to say because we sold our souls. That was not the politics of any political party. And we should be, according to some people, standing by and doing nothing if democracy is in danger or in peril.
Is the Congress attempting to intimidate in order to have a committed judiciary?
In the opposition, we don’t recommend any judges. Recommendations come from the judiciary and the opposition has no role to play. So how we can ensure a committed judiciary, I don’t understand. The conduct of the present government suggests that they want a committed judiciary. And who knows what evidence they have against judges. So I think those who make this charge are themselves guilty of it.
Former Prime Minister Manmohan Singh has not signed it, nor your colleague at the Bar, P Chidambaram. Former law ministers Ashwani Kumar, Salman Khurshid and Veerappa Moily are not quite happy with it. What were the internal consultations within the Congress? Are they in favour of the move?
Let’s first take the case of former PM Manmohan Singh and my colleague P Chidambaram. When you say they did not sign, you must have presumed they were asked to sign. Then only can you come to the conclusion that they did not sign. Now the fact is, and I clarified at the press conference, we did not want the former Prime Minister to be involved in this process at all, because I think it is inconsistent with the dignity of the office that he held. And we did not want him to be part of a public controversy.
We did not even ask Mr Chidambaram to sign because there are cases pending and I am there his counsel. In fact, it is a great loss for him because I cannot appear anymore in that court. I will not appear in the Chief Justice’s court from tomorrow onwards, no question, till he retires because that is consistent with the highest standards of my profession. If he continues, till he retires; and if an inquiry is set up, till he recuses. We believe in maintaining standards.
As far as Mr Khurshid and another distinguished minister is concerned, they are not members of Rajya Sabha. You are now assuming this is a party decision. No.
You have many cases in the CJI’s court. What happens to all of them?
Life is not about earning money.
The BJP alleges that you waited until the judgment in the Loya case. Is there a vested political interest?
This also has two elements. As far as Loya is concerned, as you know, many of the signatures of members of the Rajya Sabha were obtained almost a month ago, and seven of them had retired. At that time when they signed, they did not know what was going to happen in Loya’s case. So their decision to append signatures would have nothing to do with Loya. They did not know on April 19th the judgment would be rendered. Then one week before the 20th, when we went to the Chairman Rajya Sabha, we sought time from his office. And he was travelling. Had he given time the next day, we would have gone to him the next day. At that time we did not know that the decision in the Loya case would come on the 19th. So when we asked for time, he gave us 20th, 12 noon. So we went and gave him the motion on the 20th. So how is this motion anything to do with Loya? And Loya is not part of any allegation in the motion itself. So, I think that should clarify.
Express Opinion | Fiddling with a WMD
Now, the time. As far as the timing is concerned, remember, this is not something that can be done overnight, and should not be done overnight. In fact we never wanted to impeach. We were hoping that after January 12th, the judiciary itself will sort out the very serious issues that the four distinguished judges raised. January, February, March (passed). It’s when nothing was happening, and things were obviously getting from bad to worse and allegations were being made in the public domain on many issues, that we decided to address this — that what we should do. And there was thorough discussion between various members who ultimately signed as to what should be done. And always, there are several opinions which will be given by members, and (so) it must be. There were two choices with us — one, we know that there is rot that has set in and to let the rot fester to ultimately destroy the very institution. And so, therefore, in somebody’s words, “lump it”. So we should lump it to let the rot destroy the independence of the judicial system and its integrity. Or, we discharge our responsibility — because there is no other way. You tell me any other way to deal with a judge. The only way is through the impeachment process. So either we allow the rot to continue, or we ensure through a process that even if we are in a minority, even if we know that the ruling party has larger numbers, we must send a message that we want a judiciary which functions transparently, which is accountable, and which adheres to the highest standards of judicial integrity. So the choice was between letting the rot fester or to send a message that no, we will not accept that. And we made a choice in favour of transparency, accountability and maintaining higher standards in the judiciary.
Now why did we not do it earlier? There were several things that happened in between. As you know there was the Gujarat election that happened earlier, this decision was taken later. Then, in between, our young girls were being raped, that had caught the attention of the nation. We did not want that attention to be diverted. Then the Congress party would have been accused. Then there was the Dalit outrage which again exercised all parties including the ruling party. We did not want to interfere in that… So timing is a matter we have to decide depending on other issues that are exercising the minds of the people in general, which is why we did it now.
You had argued that the Ayodhya case should be postponed. In political circles, there are charges that Kapil Sibal has a vested interest to ensure that since it is being heard by a bench headed by Chief Justice of India Dipak Misra, you want to get him out of the case, to recuse himself.
When I appeared in that case, I did not appear for the Congress party. In fact here is no political party that is represented in the case. So whatever I said was not as a Congressman. I said it, I believe it, what we don’t want is a situation, that’s what I said at that time, to ultimately repeat what had happened in the past.
After the learned judge said no, I will hear it day to day, nobody has sought adjournment in the matter. So why then attribute a motive? The judges themselves say address us on constitutional issues first — they are adjourning from time to time… So, where is the question of political interest of anybody, far be it of a political party? So it is for the judges to decide. I raised that issue for one simple reason, and I want to make it clear, that it surprised me and I will repeat it, that this matter came up at the instance of a person who is not a party to the proceedings. He mentioned the matter before the previous Chief Justice. The previous Chief Justice listed it. Then there was an objection. Then that order was recalled. Then again it was listed. Then he wrote to the Prime Minister, that now that I have got it fixed, you discharge your responsibility of your promise in the manifesto. So I told the court that there is a political motive behind it. Motive is not mine, motive is of the other side. And as a lawyer, I have every right to bring that to the court.
You did not appear in the case after that. There were some rumours that the party had asked you not to.
Case on merits had not started. As and when it starts on merits, we will see. The party did not instruct me to appear, the party cannot instruct me not to appear. The party is not a party in the proceedings. This is again politics. This is the politics of a political party that has always played politics and attributed it to others.
You don’t have the numbers. All that you can achieve is the recusal of the CJI. So what is the ultimate objective?
Let’s look at it a bit more philosophically. Supposing there is a fake encounter and the family is told what you are going to achieve. The whole system is against you. You file an FIR… and you see what has happened in Sohrabuddin’s case, see what is happening in Malegaon, see what happened in Loya — the first judge was transferred — see what is happening in Mecca Masjid… the same thing will happen with you, so let it be. The numbers are against you, the tide is against you. So should that family keep quiet? Numbers have no relevance when what is at stake are principles. Then numbers don’t matter. You fight for the institution. You may win, you may lose. I’m sure that when the inquiry is held and the facts emerge, case would be proved.
But unimpeachable evidence is needed for an impeachment motion.
The Constitution says that you move a motion for the removal of a judge. Then there is an inquiry. After the inquiry, if the inquiry holds the judge to be accountable, and the charges are proved, then at that stage it is proven misbehaviour. Now you want me to show you proof of misbehaviour without an inquiry. If that was the case, there was no need for an inquiry. An inquiry under the statute is to prove something. If you have proof, there is no need for inquiry. So I think again, people misunderstand the provisions of the Constitution. There is enough material for moving the motion, for an inquiry which will, hopefully when evidence emerges, and that’s all with the CBI, will prove the charges.
What if Rajya Sabha chairman rejects it?
He has no jurisdiction. He cannot decide on the merits of the motion. He can only decide on the procedure. So the provision in the Judges (Inquiry) Act for him to either dismiss or admit, relates to only whether 50 members have signed, their signatures are there and motion is in order. He is to refer that matter to the Judges (Inquiry) Committee for decision on the merits. He has no role to play as far as the merits are concerned. He can’t dismiss it. It’s not permissible under the Constitution. He can dismiss it provided 50 members are not there, provided the charges are inconsistent with the provisions of the Constitution. But otherwise he cannot. He cannot say this is not enough. He is not a quasi-judicial authority to decide on the motion. That’s for the Judges (Inquiry) Act.
Will it not be governed by his prerogative as Rajya Sabha chairman?
No, Rajya Sabha chairman is not of the House. It is only presented to him for an inquiry. It is not presented to him for a decision on merits.
Does it behove the Congress, a former ruling party, to go after the judiciary?
It’s like this. When they sought to impeach Ramaswami, the same question should have been asked of them.
They were not in the ruling party then.
That’s right. Now they are in the ruling party. So they should not resist it. This is something they did when they were in opposition. We are talking about an institution, which is the only institution that protects people. All other institutions of government are proceeded against by citizens through the courts for the citizen’s protection. And if there is taint in the process of this institution, then all is lost, which is why the four judges said democracy is in peril. That’s what we have to be concerned about. Not about whether we were ruling at one time or we ruled for 60 years. That’s not the issue. And what happened? Justice Gangele was impeached. Nothing came of it. But people proceeded. This government did not say why this impeachment is taking place. For the last four years, that’s been happening. They are playing politics in this, not us. None of the charges have anything to do with politics. And these charges are in the public domain.
One of your charges is that the CJI sends cases to benches of his preference. But Justice Chelameswar has said that the assignment of cases to preferred benches by the CJI has always happened.
What else did he say? He said something else also. Say that also.
He also said institutional change is what is needed.
So what’s wrong with that? Do you think it is all acceptable that every sensitive case is sent to… The petition that has been filed saying that there should be some way of ensuring that that process is also transparent. Let me now assume against myself, that the CJ should be the master of the roster in every case. Why? Because we trust the CJ. This principle emanates from trust. Suppose he breaches that trust and consistently breaches it, I’m not saying that about any particular judge. But supposing if (a) future Chief Justice continuously breaches hat trust, you will say, look you can’t do anything about it, because he is the master. And judicially you will not interfere. So this will be the only order in the functioning of the Constitution of India that can never be challenged. Is that acceptable as a Constitutional principle? All other orders in India by any authority are amenable to the jurisdiction of the court but not this? Tell me the answer to that.
About the legal imponderable… are you saying that you have the option of a legal recourse because it doesn’t fall in the privileges of the House rules?
According to me, it would be a breach of privilege (if the chairman rejects it) because we have a privilege to move the motion under the Constitution. That’s a serious issue again. That is something we will have to consider. But why should I speculate? I’m telling you my understanding and interpretation of the law. I also may be wrong. Nobody is infallible.
Because there were suggestions that if it is rejected, people can go to Supreme Court?
When the situation arises, there will always be ways of dealing with it. Because there is no decision without a remedy. Every decision has a remedy.
And there the imponderables begin.
There also there will be a remedy. So those processes will emerge as and when the situation arises. I refuse to speculate on it.