A judicial conundrum


VK Bahuguna

The petition to impeach/remove the CJI has rightly been rejected by the Vice President. The judiciary is the last refuge for justice for the citizens of the country; it must be protected
The Indian judiciary is facing its biggest challenge since Independence. This comes with a cocktail mix of ambitious politicians and sulking judges. This cocktail seems to be more intoxicating for the Capital’s chatterati than the real brew itself. The media is agog with the unprecedented steps taken by seven opposition parties led by the Congress which approached the Vice President Venkaiah Naidu to initiate proceedings for the impeachment/removal of the Chief Justice of India (CJI) Dipak Misra. Their move was, however, blocked by Naidu, who said it “lacked substantial merit”.
The ticking time-bomb in the judiciary first exploded a few months ago in January with a Press conference held by four senior-most judges of the Supreme Court (after the CJI) in which they accused the CJI of ignoring seniority of the judges in allocation of cases to different benches. With these two nasty developments, the governing machinery as also the people are stunned. Citizens of the country were amused to see the judges holding a Press conference in the Capital on an internal administrative matter which falls within the internal remit of the apex court. Now, this removal petition has led to an outrage among the people.
Adhering to established norms of good governance, indifference and lack of political/administrative will to prevent such misuse of power and subversion of the rule of law is seen more often than not in different higher echelons of the Government. The culprits usually get away with impunity. The judiciary must share a portion of the blame for poor governance as it is on occasions focused more on the letter than the spirit of justice; though on many occasions it rightfully intervened and set the agenda of governance back on track in the field of environment through public interest litigations. From the point of view of a citizen, matters in the national interest needs to be examined in the context of overall governance.
The current move of political parties to initiate impeachment proceedings is a signal to the people as to what extent political rivalry can throw a spanner in the working of our institutions. Even a cursory look at the charges in the petition as reported in the media seems to show that they are nothing more than frivolous and tendentious, more so because even if an iota of doubt exists on some issues there are remedies for this within the system and certainly it is not a case as serious as to question the personal integrity of the CJI.
The high office needs to be protected otherwise anyone not getting a favourable judgement can mobilise 50 MPs and file for the impeachment of judges.
Let us also examine grievance of the four judges. In their joint letter to the CJI, they raised the issue of arbitrary manner of allocation of cases by ignoring the seniority of judges. They further emphasised that the CJI is only first among equals and, hence, needs to respect the seniority of judges while allocating the cases. If he is first among the equals, it must have been enshrined in the Constitution; then, immediate rectification is needed and if this is not clearly mentioned then it opens space for other criteria of determining the status of CJI and also the question of discipline, insubordination and accountability in the judiciary.
The second criteria for determining the status of any post vis-à-vis its superiority or subordination to another post in the governing hierarchy is the pay structure, which is the foundation stone for deriving command and control and enforcing order in any organisation. All institutions across the country are bound by this and any unilateral challenge to this will bring chaos and destabilise the rule of law.
Now, if we examine the CJI, his salary is higher than all other judges of the Supreme Court. He is the chief among other judges and, therefore, ipso facto commands and is granted authority to administer the Supreme Court. He is the ultimate controlling authority of the top court and, hence, the argument of first among equals does not hold water unless backed by statutory provisions or the Supreme Court’s previous rulings.
The third criteria to determine the disposal of cases is the precedent followed by previous incumbents. It is evident over the past 20 years that important cases have been assigned to junior judges by the CJI. It is also to ponder as if the professional wisdom among equally placed people in an organisation is less in a junior person and more in the senior person. Prima facie, it symbolises a power game in the higher echelons of the judiciary and it has spilled over into the polity now. Already this power game was witnessed by the nation when the proposal of the constitution of a judicial commission for appointment to the higher judiciary was contested by the top court.
However, the questions of arbitrariness must be examined as an opportunity with a reformist mindset to revisit and fine tune all our systems. From overall governance perspective, increasing instances in all superior institutions’ arbitrariness, bias, misuse of authority, ignoring merit and fickle mindedness in decision-making by people at the helm of affairs is eroding confidence of the people in our institutions. One example is the way our parliamentarians are behaving in both the Houses of Parliament, violating all norms of good parliamentary behaviour. People are silent spectators as it has become a norm to create halla to stop the Government from conducting business, resulting in a waste of resources.
The worst examples which never come to light relate to the bureaucracy where many use their position blatantly to settle scores and due to this, honest people suffer. The Central Administrative Tribunals Act, 1985, was passed to reduce the burden on the High Court but today they have huge pendency and have become a sanctuary for retired bureaucrats, advocates and judges.
At the same time, the Prime Minister should think about how the Supreme Court can become accessible to a poor man and curtail the mind-boggling legal fees, widen the network of recruiting judges, review the working of tribunals and modernise jurisprudence. The Government, the Bar Council of India and Bar Association must come together and save the reputation of the judiciary as it is still the last refuge for justice for hounded and harassed citizens. The petition on impeachment after due examination has rightly been consigned to the dustbin of the history.
(The writer is former Director-General, Indian Council of Forestry Research Chancellor, FRI University and Principal Secretary to Government of Tripura) (Courtesy: Pioneer)