Opposition Parties Demanding Removal of the CJI, Deepak Mishra

by April 26, 2018 0 comments

Deepak MishraAlthough thoughts and guesses cannot replace proofs. Nobody in the opposition parties has full proof evidence , still they are demanding the CJI’s removal on plain conjecture.

As someone who has held the Supreme Court  (SC) of India to be a sacred space of our democracy right from the day when I roamed the corridors of the SC as a young bright-eyed lawyer, it is distressing to see seven opposition parties led by the Congress, move a notice for the removal of the Chief Justice of India (CJI) Dipak Misra.

Former Prime Minister and senior Congress leader  Dr Manmohan Singh’s name was conspicuously missing from the list of the 64 parliamentarians who signed the notice for the removal (impeachment) of the CJI and the SC, in a reaction to the notice, said that statements by lawmakers on the impeachment of judges were ‘disturbing’. It is indeed a black day for India as this is the first time in the country’s history where a removal of the CJI has been asked for and that too, without substantial ground.

Be it, Congress’ big-heartedness as they claim that the party did not involve Manmohan Singh because of his stature as former Prime Minister of the country, or be it the former Prime Minister’s own decision not to put his name on the dotted line, it is also quite telling how wrong this move is.To read into the reasoning for the Congress and the Opposition’s demand to remove CJI, be it the recent Judge Loya verdict or the Ram Mandir hearings, will murky the waters further as well as scandalise the judiciary. Without getting into the motivations and keeping politics out of it, no history book will be kind to this foolhardy move against the judiciary.

The legislature, executive and judiciary are considered as three pillars of the democracy and to publicly attack a strong and respected institution such as the judiciary with such ease as well as abject lack of thought is shameful. The fine balance between the three is the backbone of India’s Constitution and those asking for the removal of the CJI, must keep in mind the decorum dictated by the Constitution for they seem to have lost the plot. The separation of power that ensures the independence of the judiciary has been very carefully penned in the Constitution by our founding fathers.They made the process of removing the CJI, a painstakingly arduous task, as they more than understood that judgements passed by the judiciary may not please all and thus, made sure that other branches of the Government do not deem themselves to be ‘judge and jury’ on the judiciary or ‘second-guess it’, if any judgment is inconvenient to them.

The signed movement such as this one, which does not stand on a substantial ground, mocks the judiciary and more dangerously, this brazen attack on it by lawmakers has set the worst kind of precedent for the world’s largest democracy. It needs to be understood that it’s not this easy under the Indian Constitution to do a coup d’état on the judiciary. Although enshrined within the Constitution, the process for the removal of the CJI or any other Supreme Court judge can be initiated in either House of the Parliament but it is so tedious that it has multiple levels of checks.

It requires a notice of motion issued by 100 MPs from the Lok Sabha, or 50 from the Rajya Sabha and the Speaker or the Chairman can accept or reject the notice. If and when the notice of the motion for impeachment is accepted, the Speaker or the Chairman is to form a three-member committee to investigate the charges. Upon finding merit in the allegations, if at all, the committee recommends the motion of impeachment be taken up by the Parliament and it would then be put to vote where the House must pass it by a special majority — not less than two-thirds. In other words, at least 364 members should have voted for the motion in the Lok Sabha, and 164 members in the Rajya Sabha. Once both Houses pass the motion, it would then be placed before the President for approval and if the President assents, then the CJI stands impeached.

A simple reality check of the Opposition’s clamour, the hollowness of the allegations that form the basis of the move and the sheer lack of numbers to see this through, make it more than apparent that such a (mis)adventure is doomed from the get go. Unlike a Samurai’s seppuku, there is no honour here and so, therefore, the question that comes to mind is — why such harakiri is being attempted and to what end? Simply put, the idea is not to seek a real impeachment but is a knee-jerk salacious attempt to publicly defame and malign the CJI and the judiciary and also appears to be a tool to intimidate and disrupt it. As with the judiciary, be it questioning the Election Commission on EVMs, the Army on the surgical strikes, the Prime Minister’s or President’s office, the Opposition has seized every opportunity to try to cast shame on strong and respected institutions that make India proud.

While most of the Opposition’s attempts have only ended shaming itself, the vile attempt will not completely break a strong pillar of our democracy but it has compromised the dignity of judiciary. In the past, too, the Congress has indulged in actions that were aimed to destabilise the judiciary. In 1973, Justice A N Ray was appointed as the CJI in a controversial manner that saw him supersede three senior Supreme Court judges. The move was seen as an unveiled and direct attack on the sovereignty of the judiciary and similarly, in 1986 when the Rajiv Gandhi-led Congress Government overturned the then Supreme Court’s landmark verdict in the Shah Bano case, it openly subverted the country’s apex court. This vile attack is a shameful and unveiled attempt to undermine it and the judgments it deliver. The media, which is considered to be the fourth estate, may not understand the magnanimity of this unprecedented Constitutional issue that needs to be dealt with refrain and caution. A great deal of responsibility rests with the lawmakers to not take away the credibility of judiciary and the media will also need to play a responsible role. As per the Constitution, citizens cannot sit on judgment over the judges.

Thus, allegations, counter-allegations, the merits or the lack thereof to make the case for the removal of the CJI or any other judge is not open to debate, least of all, on television channels. I cannot emphasise this enough as it appears that many are debating the competence of the incumbent CJI without reading the status assigned to him in the Constitution of India, wherein it has been made virtually impossible to cast aspersions for his removal without evidence even when the matter is debated under the privilege of the Parliament.

‘Suspicion’ cannot replace ‘evidence’, and right now nobody has the evidence but is crudely demanding CJI’s ouster on plain conjectures. Let it be known that while some quarters work to impair the judiciary, they also jeopardise India’s foreign policy and interests, be it, national security or commerce. Things such as the extradition of economic offenders, terrorists or any such variety would come under a shadow of doubt. Thanks to this motley bunch constantly on the job to undermine every other authority in India but their own self.

(The writer is a lawyer and the State Spokesperson for BJYM, Chandigarh. Views expressed are personal)

Writer: Amrita Bhinder

Courtesy: The Pioneer

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