Fiddling with a WMD

Politics of embarrassment matters more than proposed removal of CJI. No bigger message has emerged

Written by UPENDRA BAXI | Updated: April 23, 2018 1:54:30 am
Impeachment motion against CJI would get defeated: AAP The indictment, overall, is about how the CJI conducted himself in forming benches, also the subject matter of the press release (on January 12) of a letter written to the CJI by the four senior-most justices.

The Indian Constitution has, among several unwritten basic human rights, the right to have miracles performed unto people. One miracle is that politicians must take care not to practise politics; rather, they must do “development,” propagate “nationalism” and uphold “national interests”. It is as weird to say that business barons should do everything else but make profits, media abstain from conveying news and views, or saints not preach
spirituality.

Party spokespersons and their leaders often compete in proclaiming that one should not do “politics” about certain matters. But it is the main function of political parties to perform competitive (primarily self-interested) power politics, which swallows the already judicially-drawn few red lines: Power must be exercised only for the purpose for which it is conferred, it should be held in public trust, legitimate expectations of people must define
constitutional governance, fundamental duties enunciated by Article 51A must be incorporated into the daily behaviour of all citizens, the obligations of the Directive Principles of State Policy must remain paramount, and even when basic human rights may be “reasonably” regulated, the state may never abrogate these principles altogether.

These red lines, however, are contested: It seems that everything remains up for grabs. The recent “impeachment” notice (Article 124 only speaks of removal for proven incapacity or misbehaviour) by the Congress and six other parties of the 45th Chief Justice of India (CJI) provides a case study. Its protagonists insist the action is animated by high constitutional duties; opponents say that the move is “politically” motivated.

The Constitution contemplated removal proceedings against all justices but this is the first formal accusation against the CJI; even if proceeded with, absent undue hurry, it will become constitutionally infructuous when the present incumbent ceases to hold office on October 2. The question here is: Is it good politics to pursue an obviously infructuous course? Besides, the motion is led by an erstwhile ruling party which elevated the CJI to the Bench in the first place; presumably, a close examination then dispelled the allegations of lawyerly corruption.

The motion stands animated by the symbolic politics of targeted messages. First, is the message to all the justices that there exists an Opposition to whom the prized basic structure of judicial review is very dear; second, stands conveyed a direct signal to the party in power in an election year; and third is a message to different publics that the future of the Constitution is safer with the Opposition. What seems to matter for removal politics are entirely these political messages. Politics of embarrassment matters more than the proposed removal of the CJI. What alternate messages may then be conveyed by the ruling coalition remains to emerge.

The immense power of the Chair of the Rajya Sabha to disallow the motion becomes significant. Section 3 of the Judges (Enquiry) Act, 1968, endows the presiding officers with absolute discretion to allow or disallow the motion, though, in many situations, the courts have ruled that the authorities must give reasons for their actions. Would the protagonist MPs take recourse to the Court in case the motion is disallowed? Ironic this would be for the political actors who always insist on parliamentary sovereignty.

Will the Court entertain a social action litigation to quash the proceedings against an incumbent CJI, or proceed against them in contempt? Will these matters weigh with the Chair of the Rajya Sabha and were he to consult the Attorney General (AG), what opinion can/would he give? Does the AG have any responsibility to formally address the House in a matter of such great importance?

If, however, the Chair allows the motion, a committee would have to be formed comprising one Supreme Court judge, one High Court Chief Justice and an “eminent jurist”. Normally, it is expected that the CJI will be consulted for nominations; but when the CJI is indicted, should the presiding officer consult senior-most justices or all the justices or any of them? However, no legal academician is endangered — if the past is any guide, there are none who count as “eminent jurists”.

Under the Act, the charges must be scrupulously investigated and the judge to be removed must be given a full hearing, backed by “definite charges” on “the basis of which the investigation is proposed to be held,” and a statement on the grounds on which such a charge is made. Further, the justice so indicted has the opportunity of presenting a written submission and cross-examination is allowed. Presentation and consideration of recommendations and a final decision on removal, if the charges are held substantiated, mean that the process cannot be hurried at all. There is no way of expediting it by October 2.

It is premature to examine the charges but the indictments on the grounds of “corruption” stand organically related to the questions of bench/roster formation. The indictment, overall, is about how the CJI conducted himself in forming benches, also the subject matter of the press release (on January 12) of a letter written to the CJI by the four senior-most justices.

The Supreme Court Rules 2013 (and tradition) recognise the CJI as the “Master of Rolls”. Whether that power is absolute or must respect the “rule of law guaranteed by Article 14”, or the expression “CJI” in the Rules must be taken to signify the judicial collegium of the five senior-most justices are all subject matters of a live petition filed by the veteran lawyer, Shanti Bhushan, and admitted by the CJI himself.

A judicial resolution of the matter is awaited. An administrative decision by the entire Court is possible, though perhaps the CJI and some justices may disagree on the matter. But this possibility does not bar a public statement by the Court that the Rule will be considered for amendment soon.

Is the ultimate weapon of mass destruction (in this case, a removal in the shortest possible time of a CJI) necessary, desirable, or proper?

The writer is professor of law, University of Warwick, and former vice-chancellor, Universities of South Gujarat and Delhi

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