Just when Chief Justice of India Dipak Misra needed to dispel doubts that the judiciary under his watch had not yielded to the executive, the Modi regime has cockily nixed the Supreme Court collegium’s nominee for judgeship, K.M. Joseph.
Having gone out of its way to ring-fence the CJI from the impeachment proceedings which the Opposition – unwisely – wished to launch, the Bharatiya Janata Party leadership has revealed, unsurprisingly, its intent to not just dismantle the collegium system but also to refashion the judiciary into a subordinate branch of government. The Modi power vertical cannot be faulted for its exquisite ruthlessness.
It is no longer important to argue that this is precisely the thrust of the argument made by the Chelameswar Four. Nor does it help anyone’s cause to argue that Chief Justice Misra has turned out to be unequal to the dignity and obligations of his high office. The challenge before all thoughtful and concerned public women and men is to think of ways to help him defend the independence of the judiciary at a time when it is clearly under pressure. It is one of those painful moments when every effort should be made to ensure that the limits and insecurities of one man do not end up becoming a reason for the decline of an institution. In fact, Chief Justice Misra needs to be rescued from his own unsought reputation for partisanship.
Notwithstanding M. Venkaiah Naidu’s gross abuse of his office as chairman of the Rajya Sabha, the move to impeach Chief Justice Misra was utterly unwise and totally unbecoming of a political party that ought to take pride in being an architect of our abiding constitutional arrangements. It is not just that the Congress’s clever legal managers have needlessly pushed the CJI into a partisan corner; what is especially disquieting is that the party has set a very unhealthy and dangerous precedent.
Still, political stupidities, tactical errors and procedural correctness apart, we need not lose sight of the larger play of institutional forces.
It is imperative to recognise the inherent tension – often creative, sometime dysfunctional – between the executive and the judiciary. Strong governments, confident of their strength in the Lok Sabha, have always resented any kind of judicial oversight or restraint. Sooner or later, a strong leader, with delusions of greatness and grandeur, comes to regard the “unelected” judges as a nuisance, a bunch of robed gentlemen who needed to be shown their place. How to “fix” the judiciary to its convenience is one of the central, unspoken but pressing, pre-occupations of every government. The one Modi heads is no exception.
On their part, the judges too just do not roll over. Whenever they sense a weakening at the core of Delhi’s political power structure, they have exhibited a tribal tendency to move in. Sooner or later, of course, this invites a counter-move.
Even though we are all happy to subscribe to the bogus conceit that the judiciary is – and, ought to be – above politics, we know that politics is never very far away from the corridors of our higher courts. Not because the judges are political partisans, but because the higher judiciary’s pronouncements have political consequences. Judges may not be party men but they do have their preferences and predilections – even if, over the years, they have learnt to hide their passions and prejudices under black robes.
The conundrum the Supreme Court judges find themselves in today can be traced back to 1967, when a sitting chief justice (K. Subba Rao) chose to receive two opposition leaders (M.R. Masani and Balraj Madhok) and allowed himself to be persuaded to become a presidential candidate against the ruling party nominee, Zakir Hussain. That was the judiciary’s – or, rather, one judge’s – first, open and unapologetic, foray into realpolitik.
Chief Justice Subba Rao’s failed presidential bid, naturally and unavoidably, produced its own repercussions on the institutional balance. As it happened, however, the political class was too internally distracted at the time – those were the days of the great Congress split, bank nationalisation, abolition of privy purses, etc – to want to do something about it. To be sure, Indira Gandhi did seek to do something about the imbalance the moment she got the Lok Sabha numbers and the political space: three Supreme Court judges got famously superseded.
Since 1967, the executive-judiciary balance has seen many ups and downs, and political leaders and political passions of the day have made demands on judicial equanimity. However, the executive-judiciary equilibrium has been shaped mostly by the quality of judicial leadership at the apex court.
In this regard, Chief Justice Misra has turned out to be a disappointing leader. May be it is the nature of our current politics that creates such overwhelming circumstances for some of the judges that they become oblivious to the demands of judicial independence. As CJI, Justice Misra has allowed internal harmony to erode; the esprit de corps has evaporated. Instead of solidarity and brotherhood, there is suspicion and weariness. The Chelameswar Four have publicly advertised how the rules of etiquette have been breached and how internal conversations have broken down. Chief Justice Misra was tested as a leader and obviously failed the test in the eyes of his senior-most peers. Consequently, the apex court’s reputation and prestige have suffered precipitously.
There is a simple lesson here: no judge should play poker with politicians. The political class, especially its ruling faction, seeks acquiescence, not partnership.
The Modi government cannot be over-faulted for wanting to control and calibrate the judiciary. It takes pride in its no-nonsense approach to matters of state; it is simply not prepared to countenance judges who disagree with it. And, naturally, it neither forgets nor forgives. It is virtually impossible to avoid the inference that Justice K.M. Joseph has been made to pay a price for giving a particular judgment – the same charge that the government’s partisans were correct in making against the Congress for wanting to impeach Chief Justice Misra for the Loya case verdict, undoubtedly a grossly flawed judgment.
The Joseph rejection has presented the divided judiciary with a reason to close ranks. The onus is also on the Chelameswar Four to help the CJI rediscover the joys of institutional pride. As soon as possible, he should reiterate the collegium’s choice. Justice Joseph’s name should be sent again to the government. Chief Justice Misra has a god-sent opportunity to clear his good name, regain his moral authority and resuscitate the judiciary’s institutional elan.
Harish Khare is a journalist who lives and works in Delhi. He was, until recently, editor-in-chief of The Tribune.