I intend to avoid the impeachment controversy and instead focus on what is arguably the most important issue of substance raised by the four senior most puisne judges of the Supreme Court. It’s contained in this sentence of their letter made public in January: “There have been instances where cases having far reaching consequences for the nation and the institution have been assigned by the Chief Justices of the Supreme Court selectively to the benches of their preference without any rational basis for such assignment.”
First, it’s important to note they’re talking about chief justices in the plural and not just the incumbent. So clearly this problem has been around for a while. Although in January Justice Kurian mentioned the Loya case, in the interview he gave me earlier this month Justice Chelameswar cited the Jayalalithaa case. That bench was constituted by former chief justice Jagdish Singh Khehar. So the finger of accusation is pointing at several chief justices, not Dipak Misra alone.
Now, what are the implications of this charge? When chief justices selectively assign cases to benches of their preference, without any rational basis for such assignment, doesn’t it mean they’re allocating cases in a way that will pre-determine the outcome? In other words, they are giving the cases to benches which they believe will deliver the sort of verdict they want. This seems pretty obvious.
The question is for whose benefit is this being done? Presumably it has to be the executive. So did these chief justices have an unsuitable or inappropriate relationship with the executive of the time? Were they, possibly, beholden to it? We don’t know but these are inevitable and unavoidable questions.
However, the implications of that critical sentence go further. For its not just the integrity of several chief justices that it questions, the sentence also casts aspersions on the integrity of the judges who were chosen for these preferred benches. It suggests they were pliable and willing to do their chief justices’ bidding by delivering verdicts that would please them. Otherwise, why were they chosen for these preferred benches?
So now you have to ask: Did these junior judges – some of whom may still be serving – also have an inappropriate or unsuitable connection with the government of the day? We need to find out.
I’m not sure if all of this adds up to reasonable grounds for impeachment but it certainly requires investigation. And that investigation must look into the functioning not just of the concerned chief justices but also of the junior judges who served on preferred benches. When the four senior most puisne judges make such a serious charge it can’t be left hanging in the air. It has to be pursued to its logical conclusion. One needs to establish whether they are right or wrong.
My fear is that the impeachment controversy has deflected attention from the need to investigate and verify or disprove this critical charge. If it’s now forgotten or relegated to history, the Supreme Court and the majesty of Indian justice will suffer. The stain of this charge can only be washed away by either proving it’s false or cleaning up the mess it points towards. To do neither would leave the Supreme Court under a cloud.