Sep 24, 2023
Sep 24, 2023
In a parliamentary democracy, the opposition parties have an important and crucial role of constructive criticism of the programmes and policies of the government and their implementation in public interest. Their role, contribution and reach to the people during this period also provide them an opportunity to project themselves as a viable alternative for governance at opportune time. The problem of the Indian democracy has been that one particular party has ruled the country for the most of time since independence. During this period, the government heads mostly from one dynastic family surrounded with sycophants have created an ecology inter alia including even committed constitutional and statutory institutions. Consequently, there is a long history of ones who complied were rewarded and those claimed independence to uphold democratic institutions were often ignored and even punished.
This philosophy and traditions are so deep rooted that the grand old party finds it so difficult to accept that they are no more in power, hence they should gracefully accept this fact and fine-tune themselves for an opportune time seeking requisite mandate for the resurgence. Their restlessness and frustration is such that in their strategy to oppose every move of the government to remain in limelight, they have started attacking even the functioning of the constitutional and statutory institutions, so vital for the continued survival and prosperity of the democracy. First it was the Comptroller & Auditor General of India (C&AG), then it was the Election Commission of India, and now it is the turn of the Supreme Court under the raging controversy and fire.
The impeachment notice moved by the seven opposition parties led by the grand old party (the Congress) on 20th April 2018 against Justice Dipak Misra, Chief Justice of India (CJI) didn’t come as a surprise as things were brewing up for weeks together ever since the Budget session of the Parliament started towards the end of February 2018. A buzz was already there ever since four senior-most judges of the Supreme Court had gone public against their unresolved differences with the CJI in a press conference on 12 January 2017. The Rajya Sabha Chairman M Venkaiah Naidu was, however, equally prompt and meticulous in handling the impeachment notice on 23rd April without taking much time after consulting legal and constitutional experts and luminaries, thereby putting a break on the malacious agenda and possible disruption of the judicial work in the Supreme Court.
Factors Behind the Opposition Move
Seeds for the current nemesis had already been sown by the four senior Supreme Court judges when they rallied around Justice Jasti Chelameswar to go public on the 12th January 2017 with their agenda. The other three judges were Justice Ranjan Gogoi, Justice Madan B Lokur and Justice Kurian Joseph. Their public expression of anguish and complaint against Chief Justice Dipak Misra that opened a nation-wide debate undermining the prestige and authority of the Apex Court, was essentially in regard to alleged bypassing of established norms and traditions by the Chief Justice of India (CJI) in his capacity as the master of roster in assigning cases to the benches. The judges were particularly peeved about certain politically sensitive cases been allotted to benches represented by the judges junior to them.
Apart from the general resentment with the working and administration of the CJI, two cases that the judges specifically had in mind were: one, the case regarding allocation of the CBI judge Brijgopal Harikishan Loya’s alleged unnatural death; and two, the alleged scam of bribery in respect of the admission in the private medical colleges. The judge Loya’s case was politically more sensitive because at the time of his death he was presiding over the notorious Sohrabuddin Sheikh Encounter case wherein the BJP president Amit Shah along with Gujarat police officers was under trial as accused. The grand old party and left parties were particularly interested in this case because of their perceived opportunity of deriving political mileage out of it.
Some time back, when the controversy erupted, Loya's son stated in a press conference in January 2018 that the family no more had any suspicion over his father’s death; their family lawyer too clarified that the press conference was held to dispel any doubt over Loya's death, confirming that the family didn’t suspect any conspiracy in his death. Notwithstanding above, different conspiracy theories and postulations have been floating ever since a paper published a report raising certain issues about the death. As the judge was handling a politically sensitive case at the time of his death, it provided a good scoop and fodder for the opposition parties. A senior Congress leader and advocate even stated that the son's denial should not have any bearing on the independent probe of Loya's death. The Supreme Court on 19 April 2018 dismissed petitions seeking an independent probe into the death of judge Loya, saying that the petitions were 'frivolous' and a 'frontal attack' on the judiciary.
The Supreme Court Bench headed by the CJI concluded, "…there is absolutely no merit in the writ petition. There is no reason for the court to doubt the clear and consistent statements of the four judicial officers. The documentary material on the record indicates that the death of judge Loya was due to natural causes. There is no ground for the court to hold that there was a reasonable suspicion about the cause or circumstances of death which would merit a further inquiry.”
The way the counsels of the petitioners conducted themselves during the hearing, the Supreme Court bench was constrained to also record – “…Serious attacks have been made on the credibility of two judges of the Bombay High Court. The conduct of the petitioners and interveners scandalises the process of the court and prima facie constitutes criminal contempt. However on a dispassionate view of the matter, we have chosen not to initiate proceedings by way of criminal contempt…” The court also called the petitions politically motivated and serving a personal agenda. Confirming the apprehensions of Judiciary, the Congress chose to initiate the impeachment motion against CJI signed immediately on the following the day of verdict.
The Impeachment Motion
Charges against CJI:
Cutting across the party lines, sixty-four sitting MPs of Rajya Sabha from seven opposition parties namely the Congress, Rashtriya Congress Party (RCP), Samajwadi Party (SP), Bahujan Samajwadi Party (BSP), Communist Party Marxist (CPM), Communist Party of India (CPI) and All India Muslim League (AIML) moved a petition dated 20 April 2018 to the Chairman, Rajya Sabha calling for an impeachment motion against the CJI Dipak Misra. Simultaneously, they also held a press conference led by senior Congress leaders Gulam Nabi Azad and Kapil Sibal wherein the latter made allegations that CJI has violated constitutional norms while exercising his powers and that the independence of the judiciary was endangered by the executive. Citing the 12th January 2017 press conference by four senior-most judges of the Supreme Court, Sibal said that the nation should not stand still by doing nothing when the independence of judiciary is threatened.
Notice of the impeachment motion signed by Rajya Sabha members under Article 124(4) of the Constitution for the removal of the CJI listed following alleged acts of misbehaviour:
I. The facts and circumstances relating to the Prasad Education Trust case show prima facie evidence suggesting that Chief Justice Dipak Misra may have been involved in the conspiracy of paying illegal gratification in the case, which at least warrants a thorough investigation.
II. That the Chief Justice Dipak Misra dealt on the administrative as well as judicial side, with a writ petition which sought an investigation into a matter in which he too was likely to fall within the scope of investigation since he had presided over every bench which had dealt with this case and passed orders in the case of Prasad Education Trust, and thus violated the first principle of the Code of Conduct for judges.
III. That the Chief Justice Dipak Misra appears to have antedated an administrative order dated 6th November 2017 which amounts to a serious act of forgery and fabrication.
IV. That Chief Justice Dipak Misra acquired land while he was an advocate, by giving an affidavit that was found to be false and despite the orders of the ADM cancelling the allotment in 1985, surrendered the said land only in 2012 after he was elevated to the Supreme Court.
V. That Chief Justice Dipak Misra has abused his administrative authority as master of roster to arbitrarily assign individual cases of particular advocates in important politically sensitive cases, to select judges in order to achieve a predetermined outcome.
The Congress maintained during the press conference that the issue pertained to the institution of Supreme Court and any politics was not involved in it. They also denied that Judge Loya verdict had anything to do with this move despite the fact that the impeachment motion was moved by the Opposition within twenty-four hours of the Supreme Court verdict into the judge Loya death case ruling out possibility of any further probe.
Provision and Procedure for Removal:
Article 124(4) of the Constitution contains the following provision for the removal of a Supreme Court judge: “A Judge of the Supreme Court shall not be removed from his office except by an order of the President passed after an address by each House of Parliament supported by a majority of the total membership of that House and by a majority of not less than two-thirds of the Members of that House present and voting has been presented to the President in the same session for such removal on the ground of proved misbehaviour or incapacity.”
The procedure for the removal of a judge of the Supreme Court or High Court has been prescribed in the Judges (Inquiry) Act 1968 and rules made there under. As per section 3(1)(b) of the said Act, a motion for the removal of a judge of the Supreme Court or High Court should be signed by not less than 50 members of the Council. The same Section also provides that the Chairman after consulting such persons, if any, as he thinks fit and after considering such material, if any, as may be available to him either admit the motion or refuse to admit the same.
Decision of Chairman, Rajya Sabha:
In his ten page (speaking) order dated 23 April 2018, the Chairman, Rajya Sabha painstakingly recorded the Constitutional provision and other relevant rules, allegations or acts of misbehaviour made against CJI vide the opposition parties motion dated 20 April 2018, discreet yet meaningful consultations made with the legal, judicial and constitutional experts and luminaries including the Attorney General and Ex-Secretary Generals of the houses of Parliament, earlier relevant Supreme Court rulings, analysis of infirmities contained in the imputations of the alleged misbehaviour of CJI as contained in the said motion and impropriety of the Members of Parliament (MPs) moving motion by making the move public before admission of the alleged motion.
The question of the admissibility of the alleged motion was considered in the light of provision made under Article 124 (4) read with Article 217 of the Indian Constitution to see if every statement made under the petition tantamount to proven misbehaviour within the scope of the said article and observation of the Supreme Court in the case of M. Krisna Swami vs Union of India which provided that before admitting the motion, it may be expected and may be prudent that the speaker may consult persons like the Chief Justice of India as the fountain head of judiciary, and the Attorney General of India as the Principal Advisor of the Government, whose duty should be to give advice upon legal matters or to perform such duties of legal character. The salutary requirement that the factual foundation exists before admitting the motion to remove the judge, was also been kept in view.
Since the Notice had been signed by 64 serving members (actually it was 71 with 7 already retired), it met the requirement of Section 3(1) (b) of the judges Inquiry Act. As the motion was against the CJI himself, he was not consulted but other legal luminaries, constitutional experts and former Secretary Generals of both the houses, former law officers, law commission members and eminent jurists were consulted by the competent authority. The comments and opinion of the former Attorney Generals, legal luminaries and constitutional expert is stated to have been unequivocal and nearly unanimous in that the notice of motion is not a fit case for the removal of CJI.
The Chairman, Rajya Sabha observed that the MPs who have presented the petition were unsure of their own case. He cited illustrations in support such as “the facts and circumstances relating to the Prasad Education Trust case show prima facie evidence suggesting that the CJI ‘may have been’ in a conspiracy of paying illegal gratification…” and that “he too was likely” to fall within the scope of investigation. Against another charge, the petition stated that “the CJI appears to have anti-dated an administrative order”. It was concluded that such phases used by the MPs merely indicate a suspicion, a conjecture or an assumption, and not a proof “beyond reasonable doubt” as required to make out a case of proved misbehaviour under the ibid Article. Besides, conversations between third parties with dubious credentials heavily relied upon in the petition did not serve any material evidence against the holder of the office of the CJI.
Broadly, the ten page order of the Chairman, Rajya Sabha rejecting the opposition parties’ motion contained the following salient points:
That the MPs are unsure of their own case which is evident through their use of uncertain or speculative phrases indicating mere suspicion, conjecture or assumption as also conversations of third parties with dubious credentials, which does not constitute ‘proof beyond reasonable doubt’, as required to make out a case of ‘proved misbehaviour’ under Article 124 (4).
Clearly, some of the issues (ex. Roster to assign cases) are an internal matter to be resolved by the Supreme Court itself. Alleged five charges mentioned in the petition are neither tenable nor admissible. Also such allegations undermine the independence of the judiciary which is the basic tenet of the Constitution of India.
The Constitution seeks to establish and nurture an independent judiciary. The allegations and submissions made against the CJI in the petition do not make out a lucid case under Article 124 (4) of the Constitution reasonable enough to conclude that the CJI on these grounds could ever be held guilty of “misbehaviour”.
The said allegations are within judicial domain and concern the internal judicial processes or there are unsubstantiated surmises and conjectures which hardly merit or necessitate further investigation. On an objective consideration and careful analysis to judge if there is adequate, cogent, coherent evidence to proceed further, one finds there is virtually no concrete verifiable imputation.
In the absence of credible and verifiable information to establish the alleged ‘misbehaviour’ or ‘incapacity’ of CJI, it would be inappropriate and irresponsible to accept statements on empirical basis. It is the bounden duty of the apex parliamentary institution not to allow any of the pillars of governance to be weakened by mere thought, word or action.
One needs to examine all relevant factors carefully and dispassionately, because the initiation of removal proceedings against CJI is bound to undermine the faith of the common people in the judicial system. It is imperative that extraordinary, important and substantial grounds exist for the removal of a judge and in that context the said notice of motion is neither tenable nor desirable and proper.
The Handbook of Members of the Rajya Sabha delineates well-established parliamentary customs, conventions and norms which have been disregarded while initiating the motion, which is vindicated through the act of MPs holding a press conference to discuss the conduct of the CJI and justify own action. The Handbook prohibits publicity of any notice submitted by a member till it has been admitted by the Chairman and circulated to the members. Hence the stated action of the oppositions MPs is against the propriety and parliamentary decorum while simultaneously denigrating the institution of CJI and Supreme Court.
Reaction of Opposition Parties
The Congress party instantly reacted sharply against the decision of the Chairman, Rajya Sabha. Speaking on the party’s behalf, Sibal said that the Chairman's order rejecting the motion of impeachment was unprecedented. He also said that the onus of proving the charges was not on the MPs but on the judicial committee formed after the motion was admitted. He added that among other eminent jurists, the Chairman should have consulted other judges of Collegium as the CJI was under scrutiny. Also he objected to prompt disposal of the petition stating as to what was ‘tearing hurry’ in deciding the matter within hours of returning from a tour as the issue deserved due diligence and attention. Some other Congress leaders too spoke on similar lines questioning how the Chairman could decide such a matter within hours.
From the other crucial stakeholder party CPM, General Secretary Sitaram Yechury too expressed his disappointment alleging that the motion was not given proper attention and something else is behind this. He said that the independence of judiciary is in danger and the Chairman, Rajya Sabha has taken a wrong decision. In fact, after moving the petition, some prominent opposition leaders-cum-lawyers had gone to the extent of declaring that they will stay away (boycott) from the hearings of CJI till the matter is decided, even urging him not to preside over any bench till the issue is decided. Clearly, by acting promptly in disposal of the case, the Chairman, Rajya Sabha not only stopped speculations on the subject but also foiled the (ulterior) motive and designs behind the move.
Response of Law Luminaries
An overwhelming majority in the legal fraternity and those well-versed with the procedures of parliament endorsed the decision of the Chairman, Rajya Sabha, stating that he was well within his rights to reject the impeachment notice. Many of them held that the move of the opposition MPs led by the Congress to set impeachment of Justice Dipak Misra, CJI was ill-advised, ill-timed and a bad precedent in law on the frivolous grounds. Comments of a few luminaries are briefly indicated here.
Former Secretary General of Lok Sabha, Subhash C. Kashyap, a well-known political scientist, Indian Constitution and Parliamentary expert and a distinguished scholar consulted by the Chairman Rajya Sabha, stated publicly that the notice for the impeachment motion against the CJI was unsubstantiated, politically motivated and not based on sound facts, hence it deserved to be rejected outright. In regard to a writ petition by the Congress and demand that CJI should not allocate it, he opined that the job of the allocation of work was CJI’s business. Since the writ petition will be against him, he may not allocate it to a bench headed by him.
Another former Secretary General of Lok Sabha, PDT Achary too concurred with the decision. He, however, maintained that it can be challenged in the court unlike the Chairman’s order in a routine legislative matter. Ram Jethmalani, a prominent lawyer and politician, was very critical about the move of MPs and said that they have disgraced the entire judiciary for nothing and the action is a mischievous propaganda of people who have no knowledge of the law at all or, if they know the law, they have completed ignored it. When asked to comment about January 2017 press conference by four senior-most judge led by Justice Chelameswar, Jethmalani said that they were wholly wrong and they should not have created such a public mischief; the matter should have been resolved internally.
The statement of these luminaries gains significance and credence in the light that the two former Secretary Generals are from the Congress regime era and Ram Jethmalani is a staunch critic of the Prime Minister Modi led NDA government. Hence objectivity of these opinions cannot be doubted. The former Attorney General Soli Sorabjee was disappointed and distressed to see that some opposition MPs wanted to impeach CJI. He said that it was the worst that could happen to the independence of the judiciary and that the move would shake the confidence and faith of the people in the judiciary. Justice SN Dhingra concurred with the views of Sorabjee and agreed that it was an attempt to gain political mileage. Another eminent jurist Fali S Nariman agreed that the issues raised in the impeachment notice against the CJI were not of sufficient gravity and were rightly rejected by the Chairman, Rajya Sabha, the only statutory authority to decide on the notice.
Former Supreme Court judge B Sudershan Reddy called the impeachment move as ‘suicidal and dangerous'. He said prima facie there was no material to establish the charge of misbehaviour on part of the Chief Justice, citing some irregularities do not amount to misbehaviour. Former Justice RS Sodhi described the impeachment notice as “the most immature move” the Congress has ever committed in its history. Former Union Law Minister Ashwani Kumar (Congress regime) opined that the impeachment is an extreme remedy and such a move against CJI could have been avoided. Even the existing Congress senior leader and former law minister, Salman Khurshid opposed his party-led impeachment motion. Khurshid said,“I don’t think anyone should cast aspersions on the judiciary. Not everyone will agree with the judiciary. The judiciary, in fact, doesn’t agree with itself sometimes. But this is procedure, we should respect it.”
Many other luminaries, retired judges and eminent lawyers disagreed with the opposition MPs’ move and some even held that it was just a reaction to the Supreme Court’s verdict dismissing the petitions for a probe into alleged mysterious death of judge Loya. Even Justice J Chelameswar who along with three other senior judges had gone to public to air their grievances maintained that the impeachment was not a panacea to judiciary’s problems. When asked to comment, he said, “I do not know why the nation is obsessed with impeachment. Impeachment can’t be an answer to everything. There have to be other mechanisms in place to deal with such problems.”
Prashant Bhushan, senior lawyer and activist, who represented petitioners in judge Loya case, stated that the impeachment was only option left to secure accountability for CJI's repeated acts of misconduct. He added that those who say impeachment will erode credibility of Supreme Court don't realise that it's credibility was being eroded by acts of CJI already in public domain. Some opinions have also emerged that the Chairman’s order may not stand a judicial scrutiny.
Should CJI take a Writ Petition?
Disagreeing with the Chairman, Rajya Sabha decision to disallow the petition, the Congress senior leader and lawyer, Sibal stated that they would certainly file a petition against that and would want the CJI to stay away from taking any decision with respect to it, be it listing or anything else. They argued that the CJI should recuse himself from allocating or hearing the writ petition and leave it to the next senior-most judge to deal with it. The next judge in the seniority line is Justice Chelameswar whose public posturing last year and on following occasions against the working of CJI is well known.
In this context, the views expressed by Subhash C Kashyap are relevant and hardly need any validation. The CJI is the sole authority on roster in the present dispensation. Hence nothing should stop him from the allocation work; however, he may not allocate it to a bench headed by himself. In regard to the contention of Congress that such a writ petition should not be dealt with by CJI and left to the next senior-most judge, the suggestion is not without an inherent flaw as the opinion of the next four senior-most judges against the CJI is already known to the environment, which means that the petition cannot be left for them too to decide, applying the same logic and rationale.
It’s Part of a Vicious Eco-System
The tussle and tension between the executive and judiciary is not something new and, in fact, this has a long history among nationalities. In communist regimes, the judiciary never enjoyed complete independence from the executive. The concept of a committed judiciary also has a history in the world’s oldest democracy USA since early nineteenth century. President Thomas Jefferson’s initiatives to checkmate his contemporary Chief Justice John Marshall’s manoeuvres to uphold the supremacy of the Supreme Court is well documented in the annals of the US history.
The Supreme Court of India too has not remained untouched from the idea of the committed judiciary. Since its inception, the successive Congress governments have attempted to confine the role of the judges and tried to build an ecology based this concept. In fact, the very first Prime Minister Jawaharlal Nehru, while deliberating the role of judges, is on record to have said that “if we go wrong here and there, it can be pointed out, but in ultimate analysis, no judiciary can stand in judgement over the sovereign will of the entire community. Judges can correct wrong here and there; they cannot arrogate to themselves the position of super-house of a parliament.”
As the government head, Mrs Indira Gandhi was among the most persistent and aggressive leaders pursuing a committed judiciary, particularly in justifying her 19 months’ emergency rule around mid-seventies. It was her fanciful dictat that led to the appointment of justice AN Ray as CJI superceding three senior Supreme Court judges namely JM Shelat, KS Hegde and AN Grover in 1973. Consequently, all the three senior judges resigned in protest. Indira Gandhi’s close confidant and minister of steel, Mohan Kumaramangalam is known for propounding the theory that the executive have right to recruit or promote those who subscribed to the philosophy of the government. Although Justice Ray’s appointment was marked by widespread protests by bar associations and legal groups across the country, the government firmly stood by the decision. His predecessor Justice Mohammad Hidayatullah reportedly said that "this was an attempt of not creating 'forward looking judges' but the 'judges looking forward' to the plumes of the office of Chief Justice.”
In 1975, when Justice Jagmohan Sinha found Indira Gandhi guilty of electoral malpractices and declared her election from the Rae Bareilly constituency "null and void on account of misusing government machinery, the Supreme Court of India granted a conditional stay and finally overturned the decision, while she had already imposed a state of emergency on the nation on 25 June 1975. Later, in the famous case of Shivkant Shukla Vs ADM Jabalpur in 1976, the Supreme Court bench headed by Justice AN Ray declared the abrogation of the fundamental rights of citizens during the emergency as just and rightful by a majority decision. This bench was comprised of Justices AN Ray, HR Khanna, MH Beg, VV Chandrachud and PN Bhagwati. Justice Khanna was the only one to record his dissent and upholding of the fundamental rights then granted by the Constitution.
Subsequently, all judges became CJI except Justice HR Khanna who was superceded by his junior Justice MH Beg as the next CJI, an obvious corollary that those who do not toe the government line would have to suffer. The Justice Baharul Islam’s flip-flop with the judiciary and politics is yet another example of the Congress’s concept of committed judiciary. These are few illustrations, the Congress regimes have continued to reward judges by even offering post-retirement plum posts or punish those who refused to subscribe to the party’s philosophy and political line. The exception was a brief spell of Morarji Desai government when the prerogative and power of the Judiciary over the judicial appointments was reiterated and re-established.
Thus the Congress party’s track record in judicial appointments and accountability has not been very credible and reassuring. Why only the judge Loya case, they have a tendency of treating every adverse or unfavourable decision to the interests of the government or party as an attack on the executive. The party’s earnest will to establish the supremacy of the executive over the judiciary is known through a plethora of cases. Therefore, it is not surprising that leaders-cum-lawyers of the party, some having even worked as the Law Minister, have been instrumental in creating indefensible situations. It’s not that the other government(s), including the present Prime Minister Modi led NDA government, had not issues with the apex judiciary but they have so far gracefully avoided the situations leading to open confrontation and resorting to actions that may challange or embarass the apex institution.
What is Way Out?
The ingrained vision and objective of the Constitution of India was to ensure the independence of the judiciary and enable the judges to discharge their duties impartially without any fear or favour. But the advocates of committed judiciary during particular regimes in the past have been interested in that the judges broadly conform to the political philosophy of the party in power. This explains the appointment of persons in the higher judiciary who would interpret law in the light of the philosophy of the ruling party. The present motion of the impeachment of CJI too smacks of this mentality from the past legacies and expectation from the judges to decide cases according to the wishes of a political party.
In India, we have a unique system where the higher judiciary appoints itself in the name of independence and undue interference from the executive. This is a marked departure from the system we inherited from the British and was prevalent for several decades after the independence where judges in the higher judiciary were appointed by the President on the advice of the Union Cabinet. In 1992, the Supreme Court decided that the judiciary’s independence could be maintained only if they take the process of appointments themselves. Consequently, a Collegium was constituted comprising of the Chief Justice and two senior-most judges (now four) in 1993 to take over the work from the government.
However, ever since the Collegium System too has often been criticised for the lack of transparency and arbitrariness that makes it as bad as the earlier system, if not worse. Hence in 2015, the Parliament passed the National Judicial Appointments Commission (NJAC) Act to replace the Collegium System making necessary changes to the process of appointment of judges. In the revised procedure, half of the members were to remain from the Supreme Court with the CJI to head the Commission, giving decisive edge to Judiciary, but the law was struck down by the Supreme Court through a judgement from a Constitutional bench on the ground that it violated judicial independence.
The Supreme Court, however, agreed to reforms through a new memorandum of procedures (MOP) to be made in consultation with the Federal Government. The draft MOP prepared by the Government had several rounds but the existing Collegium did not agree to have any stipulations that may define any substantive role or contribution of the government in the matter. For illustration, the Collegium is believed to have discarded to accept government’s final word even in a situation, however remote or imaginary, when such an appointment could jeopardy the ‘national security’. Thus MOP is stuck up in a sort of imbroglio or suspended animation since March 2017.
In a democratic country, the Legislature, Executive and Judiciary are considered as three most important Pillars or Columns; Media has only recently become the fourth. Together all these provide the necessary “Check and Balance” to keep the governance healthy and at even keel. Of course, the Legislature, in a way, is supreme because it is comprised of people’s mandate and it represents their wish. The executive are entrusted with the responsibility to implement laws, policies and plans made by the Legislature while the Judiciary is to ensure that the rule of law prevails. Thus each pillar or column has specified function and requirement of working in tandem with each other. The country can ill-afford any one institution to be autocratic or despotic.
Keeping the foregoing in view, it will be a correct and laudable step if the Congress party now decides to bury their plan of further escalating the impeachment issue by moving a writ petition to the Supreme Court. Such an action is bound to further promote an atmosphere of animosity and mistrust, thereby aggravate controversies and conflict over the judiciary, bringing ill-repute to all columns of the democracy. Let there be no doubt that the best assurance for the rule of law may come only from an independent judiciary, a strong bar and enlightened public opinion in the country.
On the other hand, the Judiciary too should not shirk its responsibility because this situation has to an extent been created by their inner conflict and washing of dirty linen in public. After all Judiciary too appears to be plagued with the problems of groupism, favourism, arbitrariness and lack of transparency, besides the allegation of nepotism also made at times. Hence a better recourse to the Judiciary will be to resolve their differences internally, accept the Collegium with a reasonable government role or a Judicial Commission constituted for the selection/appointment of judges comprised of a certain number of external members while retaining the strength and supremacy of the Judiciary – by accepting the need of check and balance.
More by : Dr. Jaipal Singh