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Court is now a plaything of politicians for electoral gains

Such action might have taken many forms — a law to curb the powers of the court and the method of case allocation by the CJI, might have been an option

opinion Updated: Apr 21, 2018 07:49 IST
Arghya Sengupta
CJI,Dipak Misra,Supreme COurt
A view of Supreme Court.(HT File Photo)

There is much about the Supreme Court that requires reform. Equally, there is much about the actions of the incumbent Chief Justice of India that may be disquieting. Particularly, the allegation by the four senior justices in their press conference in January about questionable bench selections by the CJI, his continuance on a bench to hear a matter relating to medical college admissions where his involvement, rightly or wrongly, had been insinuated, and his studied silence on these issues, are grave provocations that might impel a concerned Parliament to act to restore the dignity of the court.

Such action might have taken many forms — a law to curb the powers of the court and the method of case allocation by the CJI, might have been an option. But when seven opposition parties unite to bring an impeachment motion against the CJI in the aftermath of the judgment dismissing the plea for a judicial probe into the death of judge Loya, who was presiding over a case in which the BJP party president was an accused, the conclusion is inescapable — the court is now a plaything of politicians for electoral gains.

On the face of it, the charges levelled by 71 MPs (seven of the signatories have since retired) against the CJI are serious. An impeachment motion, if initiated in January, may have evoked sympathy as a desperate attempt to institute an inquiry and hold the court accountable to the standards it expects of others. But by choosing to bring an impeachment motion, not at the time,or at any other time, but when faced with an adverse judgment to which the CJI was a party, the most core principle of judicial independence has been breached — that a judge cannot hold his tenure based on the rightness or wrongness of his judgment.

Impeachment, in constitutional law and history, is the apogee of accountability measures, to be used as a last resort by the people against holders of high public office. It is the practical application of clergyman Fuller’s dictum “be ye ever so high, the law is above you”, a “grand inquest” as former Chief Justice of the United States William Rehnquist described it. American politicians, at the height of their petty squabbling when the two-party system was taking root, understood its significance. In the only instance of impeachment of a US Supreme Court justice till date, in 1804, Justice Samuel Chase was sought to be impeached for his politically motivated judgments. Even though on facts it was clear that he was politically biased on the bench, the Senate, by a bipartisan majority, refused to confirm the impeachment. The principle — that no judge can be sacked for his judgment — was firmly established.

It is this principle, accepted as canonical in democracies the world over, that has been questioned in India today. This isn’t altogether a surprise — our politicians’ trysts with impeachment so far have been mixed. That only one impeachment motion (of justice V Ramaswami) has been voted on by both Houses of Parliament, is testament to their wisdom and restraint; equally the fact that in that singular instance, despite an independent inquiry committee having concluded that the judge had engaged in ‘proven misbehaviour’, the Congress party issued a whip to its members to abstain, thereby defeating the impeachment, showed how unprincipled and self-serving politicians could be.

The initiation of the impeachment motion against CJI Misra will undoubtedly entrench the latter narrative. When the dust has settled, the actual charges against the CJI will pale into insignificance in comparison with the principle of judicial independence that was incontrovertibly compromised. Restoring the credibility of Parliament to assure the country that reform of the court is possible, without making it a pawn in a political minefield will be arduous, matched only by the measures needed to set right the missteps of the CJI that has brought the court to the brink. For both these ends, playing fast and loose with the Supreme Court for political gains must stop. One would have hoped that having lived through the Emergency, our politicians might have known better.

(Arghya Sengupta is the research director of the Vidhi Centre for Legal Policy, a New Delhi-based think-tank. Views are personal)

First Published: Apr 21, 2018 07:32 IST