Guest post by BOBBY KUNHU

Yesterday, on 23^rd April 2018, the Vice President of India and the Chairperson of Rajya Sabha declined to admit an impeachment motion against the Chief Justice of India, thereby setting a dangerous precedent that scuttles a constitutionally mandated provision to ensure judicial accountability. There are two things that this action signifies. First, the rumors of the executive subverting judicial independence gains credence as the executive has refused to endorse a Parliamentary enquiry into the same. Second, it provides the needed impunity for any judge to act in any manner she deems fit as long as she curries favor with the executive.

It is the hegemonic notion of maintaining patriarchal, feudal and caste status quo that wants to protect powerful institutions and people from being accountable – and imagines it a scandal if an alleged  wrongdoing is investigated. The archaic common law maxim; rex non potest peccare (the King can do no wrong) is rooted in this. The illogical reprimands and criticisms against the attempted impeachment motion against the Chief Justice of India need to be examined in this light.

No human being however high an office she occupies can be devoid of regular human failings. There is no magic that makes a person more and more angelic as she climbs up the ladder of power. On the contrary the presumption should be the adage that power can tend to corrupt. Therefore accountability and transparency should increase in direct proportion to a person’s power. On the other hand in a large democracy, governance would be rendered impossible if every allegation is taken at face value.

That is precisely why the drafters of the Constitution have made sure that there are checks against abuse or misuse of power by each and every Constitutional authority including the President of India. And Article 124(4) of the Constitution of India is meant precisely to act as a check on any unbridled power that the Chief Justice of India may exercise as the head of the judicial branch of government. If one notices the reins of control of this check is with the Parliament – which consists of representatives of people.

To say that the invoking or implementation of any provision of the Constitution is a “bad” precedent is downright laughable. All provisions of the Constitution are meant to be invoked or they wouldn’t be there in the first place. Of course, every Constitutional lawyer knows this, then why this hue and cry over the introduction of the impeachment motion. The very people who were silent during the bad precedent where a sitting high court judge – Justice Karnan – was found guilty of contempt without any Constitutional mandate for such an action, are raising hell on the impeachment notice. Here one needs to remember that the hue and cry had already started even before the Vice President took the decision to reject investigation of the Chief Justice.

To understand this one needs to understand the dynamics of the legal profession and the judiciary. The judiciary is the least diversified and representative of all the branches of government. In fact the lack of diversity in the higher judiciary is regressive. Look at the case of Justice Dipak Misra himself – the nephew of the 21^st Chief Justice of India, Justice Ranganath Misra who served between 1990-91. While the legislature and the bureaucracy has embraced people from all walks of life, classes, castes, genders, occupations etc., the higher judiciary is still a closed clique. This clique perpetuates itself using judicial independence as its camouflage.

Justice Misra’s tenure as the Chief Justice of India itself is an example of how judicial independence can be compromised – as evidenced from the allegations that have been raised against him in the notice given to the Vice President of India. And this is not the first time – there have been precedents in the persona of Chief Justices A. N. Ray and M. H. Beg in 1973 and 1977 respectively where the judiciary was completely compromised to the executive. It’s just that the modus operandi has changed and people with a certain ideological bent are increasingly being elevated to the bench and this damage would take decades to be repaired and it would remain difficult to repair unless the judiciary self reflects and reforms its own appointment process to make itself more diverse, democratic and accountable.

Of course the Congress is not beyond this judicial politics. Apart from the fact that it was the Congress that orchestrated the judicial coup of 1973 and 1977 – the party definitely has vested interests in keeping the judiciary within the feudal stranglehold of non-transparency and many senior Congress leaders are also part of this clique viz. P. Chidambaram, Kapil Sibal, Abhishek Manu Singhvi etc. to name just a few. The opening of the opposition statement elucidating the allegations against the Chief Justice is very clear; “We wish this day had never come”. We need to understand that we live in a polity that is far right and in that polity the Congress is responding from the centre of right. In the last four years – foundations for which was systematically laid in the earlier NDA regimes – the autonomy of various Constitutional and statutory bodies have been encroached upon – so much so that senior bureaucrats and investigation officials are complaining about direct interference in their work from the Prime Minister’s  Office. The opposition including the Congress are at the receiving end of this – and the only recourse they had in these circumstances was the judiciary and the current Chief is being seen as someone pulling that carpet from this. If unchecked and in the event of the NDA coming back to power and with a future Chief Justice willing to play an amenable role like the current one is alleged to be playing – it can decimate the opposition – particularly the Congress – with their resources – particularly cash running dry. Otherwise, in my opinion the Congress would also prefer the judiciary to be insulated from democratization and remain inaccessible to most people.

In so far as whether the allegations against Justice Misra can be substantiated or not could only have been answered if the Vice President had accepted the motion of impeachment set up a committee. Even if the process had reached the stage of being discussed on the floor of the parliament, it is unlikely to have been passed because the numbers are stacked against the motion in the Parliament and the voting would definitely  have been on party lines with the NDA fully backing Justice Misra. On the other hand, the whole process could have been be dragged till Justice Misra’s retirement. In either case the only fallout would be the notoriety that Justice Misra would take into history as the first Chief Justice of India against whom an impeachment motion was presented – making his term as the Chief Justice much more controversial than that of Justice A. N. Ray.

Democracy does not need opaque institutions and there is no honour and dignity in lack of transparency. From sexual harassment to probity in public life, democracy does not need institutions that sweep their dirty linen under the bedspread – but institutions that have the courage to wash their dirty linen in public and admit to their faults, paving the way for corrective measures for there is no indignity in washing dirty linen – in fact it is healthy to do so. Whenever there are serious allegations of misdemeanor in public life – the only way to salvage the situation is by having a mechanism to address the same and being transparent with the processes that look into the misdemeanor

It is immaterial whether Justice Misra is guilty or not of the allegations raised in the impeachment motion. What is material is the credibility of the judiciary which is at stake. And credibility is restored by transparency, not by shutting down questioning.