Me’ lords, please look at the divided house!

Pallav Shishodia

The motion by Congress and rag-tag of political parties to impeach the Chief Justice of India has added to a tumult of our times. The views at the Bar are highly polarized. So you are part of activists’ Morcha if you support this impeachment and self-seeking Chamcha of the establishment if you oppose. If at all there is a middle ground, it has no certainty.

A lot of friends at the Bar would say we are against this impeachment but something must be done to stop the rot at the top. There is a whole range of ambiguities about the ‘rot’ and ‘something’ that needs to be done.

As part of our regular business of disagreements, we get enlivened by criticism of judges. Yet it is not at all possible to agree with this kind of impeachment. Even if there is a crisis of credibility, the precedent set is dangerous. The Vice President has rightly rejected it to nip in the bud such scandalous effort to malign the judiciary. Those who propounded this move now intend to seek judicial review of the rejection of this ill-thought motion. They are caught in own trap. It is too late for them to back out, even though the motion is doomed to fail again in all subsequent stages. The interesting times ahead promise a lot of excitement. A little reflection would also be in order.

Despite denials in media, it appears that idea of opposition is to teach a lesson after judgment in case of Judge Loya and to prevent cases like Ayodhya dispute from being heard. These and other cases can be debated eternally. If you take on face value the assertion that these cases are not the motive, then the only purpose it appears to serve is to register disapproval and cause embarrassment. For this, do we need this kind of impeachment with the glare of high publicity? Consider the very damaging public discourse it generates to reduce everyone in the process.

The charges framed as per available reports are absolutely bogus. For instance, what are the criteria to decide that a given matter is a “sensitive matter”? Is it determined by media hype or personalities involved or monetary stakes or issues of public importance or fees charged or some other fanciful yardstick!

For lawyers, every matter is sensitive on one or other criteria, more so for the litigant concerned. Which are the “select Benches” referred to in the allegation about matters being assigned arbitrarily? They need to be named with cases decided by those Benches. Those judgments need to be recalled by an appropriate petition. Impeach the judges on those Benches too. After all, how can the collaborators be left out with so many doubts and injustice! The rest of charges are based on hearsay. But who is interested in details in the arena of high politics.

Suppose the executive had hanged on with it as a bargaining chip to clear shadow on Chief Justice. Or imagine if the government uses a similar threat of impeachment as a tool to pressurize judges to decide cases like Ayodhya dispute. An attack of this kind from the Opposition drives Justice Misra more towards Government in public perception.

In a way, this politically ill-thought move also raises more questions about maturity and wisdom of leadership in Congress Party. The choice for default vote in next election has become more difficult for people disillusioned by the present regime; Real bad politics on the part of Bar in the Congress Party!

At the same time, it is difficult to take stand against this mindless motion without being seen as an ally with BJP government. This creates a problem because the Bar of the ruling party is in a longer and more lethal confrontation with Chief Justice of India and judiciary.

This eminent Bar in ruling dispensation would shrug the blame but they have been blocking judicial appointments pre and post NJAC judgment. They want to make their strong leadership more strong. The career of inconvenient judges is being sacrificed to set an example. A government winning majority after majority sees it as a legitimate political choice to control judiciary to pursue Hindutva and other agenda. They may not see the need they would have of independent judiciary when not in power. So the ruling Bar gets this doomed exercise of impeachment as God sent diversion from the real threat they themselves pose to the independence of judiciary.

One unintended effect of public interest litigation or PIL has been a kind of competition amongst judges for a daily share of public glory in doing public good. Not at all a questionable motive but this PIL pyaar ke side effects have generated a lot of internal tensions and rivalries.

An average tenure in the top court of three+ to seven+ years is too short. It creates anxiety about leaving a legacy of great judgments on issues of moment and pronouncements on lifelong fantasies. For a poor team leader who may want to do much more, it has unleashed a storm from within. A lot of introspection is needed to tackle this self-invited attack. Me’ lords individual heroism is too transitory to justify a divided house! The institution is bigger and more important than all of the present actors.

The optimists hope that this too shall pass and Bar would be raised for all. For pessimists the abyss awaits!

Pallav Shishodia is Senior Advocate at the Supreme Court of India. 

The views expressed in this article do not necessarily reflect the opinions of Bar & Bench. Bar & Bench does not take responsibility of the same.