Sunday , 16 December 2018
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Judiciary Should Be Above Board

Binayak Datta

What began with a bang on a chilly January morning, with four senior-most judges of the Supreme Court publicly voicing their deepest concerns on the functioning of the Supreme Court itself, seems to have come a full circle with the impeachment motion submitted by 64 Rajya Sabha MPs last week and its summary refusal for admission by the Chairman – Rajya Sabha.

What did all of this actually show? – We saw a chivalrous Executive and one part of the Judiciary arrayed on one side – and the opposition and the other part of the judiciary on the other – the sabre-rattling couldn’t get louder! Miguel de Cervantes’ Don Quixote would have been put to shame – with a little more perhaps than just … “ My judgement is now clear and unfettered, and that dark cloud of ignorance has disappeared, which the continual reading of those detestable books of knight-errantry had cast over my understanding…”

It was to me, truly momentous for our 68-year-old Republic (roughly my age) where the basic functioning of its 1st pillar, the Judiciary was under serious question! And mind you – these four judges have been in my view, amongst the finest of judges we have ever had, having delivered the finest of judgements, like in the Freedom of Speech Case, or the Aadhar and Delivery of Benefits Case, or the NJAC Verdict, or say the Coal Block Allocation Case or the Afzal Guru Verdict….and so on! So when they come forward and put across grave charges before the nation – I can read – the amount of frustration they might have faced – up against a stifling stonewall. It is decidedly serious then!

I would take a look at what these four right honourable justices said; the impeachment motion submitted by the 64 MPs and finally the summary refusal of the Rajya Sabha Chairman to admit the motion.

My take: The four judges put forth five facts and three conclusions. Amongst the facts were, a) the administration of the Supreme Court is not in order; b) cases are being allocated ‘selectively’ to benches of ‘preference’ without rationale; c) benches are not being ‘appropriately’ composed; d) the Chief Justice of India (the CJI) had been written to – he is not convinced; and e) There were no other choices left before them than to go directly to the people. And the conclusions were: a) This is an extra-ordinary event in the history of our Constitution; b) For the survival of democracy an independent judiciary is necessary; c) There are questions on “integrity of the institution” (the Supreme Court).

I take here the view that: a) these construe the most severe of indictments on the Judiciary; b) And since four senior most judges have brought the matter to Citizens, the Citizens now have the responsibility to speak up on the matter – it is they who are the final stake holders after all!

I speak here under this very responsibility!

What is perplexing is – the silence of the CJI. This was no ordinary judicial case being discussed; this was a matter which has put the Judiciary itself to the severest of tests before the world community!

I may mention here that our ‘independent judiciary’ had been our pride before the world business forums for these 68 years. And it was this pride that was in question now!

What followed thereafter was what we are best at – politics! So, politics played its role with deftness, ending up with 64 Rajyasabha members from the Opposition signing a motion for presenting an address to the President on impeachment of the CJI. As predicted the chivalrous Executive aided by high priests of our legal bulwark came down like tons of bricks on the impeachment initiative. The opposition cited charges like: the irregularities concerning the CJI in the Prasad Education Trust case, a false affidavit in another matter and misusing power in allocating sensitive cases to particular benches.

Now under the “Judges Inquiry Act 1968” a judge including a chief justice can only be impeached on two grounds – viz: misbehaviour and incapacity. The term ‘misbehaviour’ has not been defined but the Oxford Dictionary defines it as “..Bad behaviour, misconduct, disorderly conduct,”..in my view therefore the grounds described above get amply covered in these expressions – more so the last ground has been aired in public by not one but all of four senior-most justices of the same court!

Was it therefore prudent for the Vice President under the hat of the Chairman of Rajya Sabha summarily to refuse admission in just 72 hours with great semantics – that these do not constitute proof beyond reasonable doubts? Who decides ‘proof’ without an investigation, who decides ‘suspicions’ without hearing parties concerned? This is simply astonishing I think.

My prescriptions: I think – the Chairman should have dignifiedly admitted the motion – it’s a Constitutional remedy in any case, should citizens not know the truth finally? If on subsequent investigation the charges do stand – the government wins it establishes its anti-corruption crusade, if the charges do not sustain in any case in the final voting for the impeachment (which would require approval with 2/3rd majority in both houses) would have fallen thru, then also the Government wins – on grounds of transparency and fairness! I think the Executive lost a glorious opportunity here – instead it went and established beyond doubt really, what the Opposition was trying to make out! Ironically – in the bargain, the Opposition gets just what it wanted – a burning issue for it to keep itself relevant!

Also, shouldn’t norms of propriety demand that the CJI recuses himself from composing the bench – now that the Opposition is going to the Supreme Court against the Chairman’s Orders? In all of this, how much precious juridical time of the Supreme Court would be expended where 55,000 cases are pending?

And in conclusion, in all of this chivalrousness of the executive – it is the Republic which lost out – its people who lost out – reduced to helpless spectators to the swashbuckling of a Quixote at his La-Mancha!

 

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