A Fractured Face

Impeachment Talk

Raman Swamy

To impeach or not to impeach? That is the question that some political and legal minds in the country are reported to be currently grappling with.

The very idea of initiating impeachment proceedings against a sitting Chief Justice of India is not a matter that can be lightly contemplated, let alone decided. The Judiciary is one of the four pillars of the Constitution—the Legislature, the Executive, the Judiciary, and the Press. The CJI stands very high in the protocol of the Nation's Order of Precedence.

In spite of this, if it is true that the possibility has indeed been discussed—whether behind the closed doors of lawyer's chambers or in the corridors of Parliament House—it is a matter of great significance.

Further, if it is also true that a draft document containing the grounds for impeachment have indeed been already drawn up—and, a few signatures have already been affixed—the gravity quotient increases even more.
Over the last few months, murmurs of concern and disquiet have been heard at the highest levels of the polity and the legal profession, and even within the Judiciary itself.

It was on January 12 that, for the first time in the history of the country, four of the senior-most judges of the Supreme Court held a press conference to express concern over the manner in which the Chief Justice of India exercising his functions as 'master of the rolls'.

It was a litany of grievances which was deliberately understated but unmistakably reflected a deeper malaise within the justice delivery system. It was an unprecedented 'cry from the soul' that could not but have sent tremors and reverberations through the body politic.

The ripple effect generated serious discussion, debate and introspection with many voices emboldened to call for corrective action. Matters of such gravity and import tend to simmer for a while before getting the impetus from subsequent developments and fresh impulses.

It was in the third week of February that the murmurs of discontent received a new momentum from a farewell speech by Justice Amitava Roy at a function organised by the Supreme Court Bar Association.

There was nothing overtly critical that Justice Roy said that was radically different from similar words uttered by a judge on the eve of retirement from a distinguished career. Yet the tone and context gave deeper meaning to the sentiments he expressed.

Here is how he broached the subject :
"You must have noticed that in spite of all the reservations that many may have about the judicial process... people flock to the courts, seeking refuge for justice. And it is because of the credibility this institution enjoys, the trust which it enjoys. Therefore, in no case, I believe it's my feeling, I don't intend at all to show disrespect to anyone or any institution, in my perception and in my assessment, I feel that we cannot in any way project a fractured face to anyone".

The key phrase was "fractured face". It was louded and coded. The message was conveyed effectively and with tremendous impact.

Here are a few excerpts from what he said further :
"If that happens, we lose credibility, if we lose credibility, we lose the paramountcy of the judicial process. If we lose paramountcy of the judicial process, the rule of law is undermined".

In the gathering listening to his every word were Chief Justice of India Dipak Misra as well as three of the four judges who had spoken their hearts out six weeks earlier, Justices Ranjan Gogoi, Madan B Lokur and Kurian Joseph. (Justice J Chelameswar apparently was not among those present).

Justice Amitava Roy had even more to say: "We are all proud to believe in this institution, it is very important that we conduct ourselves in a way befitting the role that is assigned to us as the sentinel of the privy and the majesty of the office."

"When I reflect, I find that each one of my colleagues is an excellent judge by his or her own right. Individually, they are brilliant. But it is necessary to be together. We may exist as a musical note in isolation, but that note would only be a sound of acme frequency. It is only when we integrate and blend that the melody will emerge. The melody that is necessary for the judicial institution."

He then bluntly cautioned about the danger of the judiciary losing credibility. He said: "We, being the guardian of the rule of law, need to secure the same. Otherwise the caveat is: extra-legal elements and military muscles are waiting in the wings to take over. And that would spell the destruction of the institution".

There could have been nothing starker than that the warning. "Extra-legalelements" and "military muscles", said Justice Roy, "are waiting in the wings to take over".

Around the same time, a public meeting was organised by the Lawyers' Forum for Democracy and Justice. The theme was "Independence of Judiciary—Implications for Democracy" and the participants included many legal luminaries.

Here is a sampling of some of views expressed:
Indira Jaising: "I congratulate the four Supreme Court judges who, in the press conference on January 12, acted as whistle-blowers regarding the threats to democracy... they are my heroes.... When the senior-most judges, including the next Chief Justice of India, make a statement that they are speaking out so that the posterity does not allege that they sold their souls, it is to be understood as the biggest threat to democracy".

She added: "The bar must remain vigilant for the next 99 working days until the next CJI assumes office in October. We must not allow Justice Ranjan Gogoi to be superseded".

Vrinda Grover: "Recently, Senior Counsel Arvind Datar appeared for me before the Supreme Court. I was not being issued a Tatkal passport for the want of Aadhaar. The Bench directed that I be issued the passport. I have not enrolled for Aadhaar. It is a conscious, political decision that I have taken".

Indira Unninayar: "In 60 to 70% of the cases, in which the government is a party, and the judge adjudicating the matter is also from the government, there cannot be even a remote sense of justice. That is why it is necessary that, in addition to appeals, there must be a consequence of contempt or complaint against such judges. There is a provision in the Contempt of Courts Act in respect of a judge who obstructs the administration of justice, but it has been greatly diluted".

K K Manan: "The Collegium system permits only a handful of privileged individuals, who are related to judges, to become future judges. If the judge Loya case produces no results, then no individual in the world may face prosecution".

Mohan Gopal: "The January 12 press conference has delivered the apocalyptic message that the judiciary is in danger and that the four senior most judges of the Supreme Court are helpless ... They had no option but to appeal to the citizens of the nation. The danger of the rise to power of a dictator is no longer a hypothetical situation in India".

Mr Maneesh Chibber: "Would it be moral if the government chooses to interrupt Justice Gogoi's appointment as the next CJI on technical grounds? For some unimportant, unfounded allegation?"

Now there are reports that Opposition parties in parliament are weighing the pros and cons of launching an impeachment motion against the Chief Justice of India. At least one MP, Majeed Memon of Sharad Pawar's Nationalist Congress Party has categorically stated on live television that he has signed the document.

Some reports say the Congress party is still in two minds about the timing of the move, especially when the clutch of no-confidence motions in the Lok Sabha are still pending. Media speculation is that leaders of some other Opposition parties, including Trinamool Congress and the CPI(M), have been holding discussions on the matter.

The crux of the charges seems to be that the Chief Justice has not properly addressed the main issues raised by the four senior-most judges of the Supreme Court concerning the functioning of the apex court.

One version is that the strategy is to bring an impeachment motion in the Rajya Sabha with the mandatory signatures of a minimum of 50 Members of Parliament. Leader of the Opposition Ghulam Nabi Azad has however indicated that no decision had been taken so far and in any case he himself has not signed the document.

The general feeling is that there is growing anxiety over the impending verdicts in several important cases, including the Ayodhya case, Aadhaar case and Judge Loya case, which could dramatically alter the direction in which the country will turn.


Vol. 50, No.42, Apr 22 - 28, 2018