India has reached an institutional abyss4 min read . Updated: 17 May 2018, 07:23 PM IST
Even at the peak of the Emergency, India did not witness such an institutional failure as the CJI impeachment issue
It all began with the infamous press conference where the four senior-most judges rebelled against their head, the Chief Justice of India (CJI) Dipak Misra. And since then, it seems every branch of government has entered a perverse race to the bottom.
The senior judges found themselves in a difficult situation over CJI Misra’s composition of benches (one of which is a corruption case in which his own orders have been questioned). Their response, the press conference led by Justice Jasti Chelameshwar, did not have the intended effect. While the intention to make the crisis within the judiciary public was noble, these actions set a train wreck in motion. One had hoped for public outrage, and eventually legislative and executive scrutiny into the workings of the court, but it was not to be.
The executive, usually never to miss a chance to intervene in the functioning of the judiciary, decided to completely stay out of the matter—a politically shrewd move. CJI Misra retires in a few months, and there is greater benefit in steering the appointments of judges to the Supreme Court and high courts than creating a system to investigate possible corruption in the judiciary. It is naive to expect much from the executive. A malleable judiciary potentially serves the executive the most—after all, it is the biggest litigant in the judicial system.
The task of scrutinizing the judiciary thus falls upon the legislature—which, in India, suffers from inadequate separation of powers from the executive. The legislature has never been particularly good at holding the executive accountable, even in times when the opposition was strong. The Congress party, presumably remembering its role as the opposition, decided to file an impeachment motion that is, at best, flawed, and, at worst, a political manipulation. The motion lacked clarity, unity and, most importantly, evidence.
The matter went into the hands of the chairman of the Rajya Sabha, Venkaiah Naidu. While Naidu did the right thing by dismissing the impeachment motion for lacking evidence, he went about it without any regard to standard procedures or principles of natural justice. Naidu acted well beyond the discretion granted to him under the Judges Inquiries Act, 1968; he did not even refer to the Act in his order while summarily dismissing the impeachment motion. In what can only be deemed a partisan move to embarrass the opposition, he concluded that no case can be made “under Article 124(4) of the Constitution which can lead to any reasonable mind to conclude that the Chief Justice of India on these facts can ever be held guilty of ‘misbehaviour’". It is one thing to find the evidence presented insufficient, but the chairman assumes discretionary powers well beyond the scope of the proceedings and completely absolves CJI Misra.
Then the opposition, in its most ill-conceived move, moved the Supreme Court challenging Naidu’s dismissal of the impeachment motion. The case was referred to a Constitution Bench featuring the five senior-most judges not involved directly in the impeachment proceedings —therefore excluding the CJI and the next four senior-most judges who raised the complaints against the CJI. Kapil Sibal rightly raised the question of who formulated this Constitution Bench.
Taking the matter to the Supreme Court was a colossal mistake because no matter what the court does, there is a conflict of interest. The CJI cannot be part of, or even constitute the bench, to judge the procedural fairness of his own impeachment proceedings. But the same restrictions apply to the next four senior-most judges, whose initial complaint forms the core of the matter. One could argue that the sixth most senior judge could then hear the matter and constitute a larger bench. However, any judge sitting in judgement on this matter is compromised, because all the other matters referred to them are controlled by the CJI, the man and office in question. If one wants to genuinely preserve the principles of natural justice, this matter simply cannot be heard in the Supreme Court. It must be resolved within Parliament, which is even more dysfunctional than usual.
India has reached an institutional abyss that will not be easy to overcome. Even at the peak of the Emergency, India did not witness such an institutional failure. Members of the judiciary like Justice H.R. Khanna and Justice S. Rangarajan, fought to preserve constitutional protections. A strong, principled and vocal opposition, led by J.P. Narayan, tried to check the excesses of the Indira Gandhi regime. None of that is on display today.
Every single branch of government has been found lacking. The judiciary has failed, in large part because it disallowed any scrutiny into its workings. The executive has displayed the expected political avarice. The opposition, incompetent and disorganized, has created an enormous procedural mess that is difficult to untangle.
The Madisonian idea of checking ambition with ambition by separating powers in the different branches of government has not helped this situation. This is partially due to the quasi-separation of legislature and executive in the parliamentary system, and an insular judiciary marching to its own tune. And partially because of the lack of leadership in each institution.
“If the salt has lost his savour, wherewith shall it be salted? It is thenceforth good for nothing, but to be cast out, and to be trodden under foot of men." Our institutions have lost their savour, and little can be done except to start afresh.
Shruti Rajagopalan is an assistant professor of economics at Purchase College, State University of New York, and a fellow at the Classical Liberal Institute, New York University School of Law. Comments are welcome firstname.lastname@example.org.