As Chief Justice Dipak Misra is backed into a corner, the Indian judiciary’s authority is at stake

It is safe to say India’s judiciary has never been as beleaguered as it is under Dipak Misra. On one hand, the Opposition is trying to make him the country’s first chief justice to be impeached. On the other, Justice Jasti Chelameswar, the second senior-most judge of the Supreme Court, has sought a full court sitting to discuss the government’s interference in judicial functioning.

Chelameswar was one of the four senior judges who held a dramatic press conference in January and accused Misra of running the court arbitrarily.

If Parliament does take up the impeachment motion, the apex court would be confronted with a critical question: would Misra retain the moral authority to continue hearing cases even if he is legally allowed?

He currently leads three crucial benches. One is hearing the challenge to the constitutionality of the biometric identity project Aadhaar, the second is set to determine whether the mysterious death of Maharashtra judge BH Loya needs to be investigated, and the third is supposed to decide on the Babri Masjid title suit.

Misra could be faulted for not taking concrete steps to allay fears about the executive’s “incremental encroachment” upon the judiciary’s independence. But the Opposition moving to impeach him raises troubling questions of its own: is the motive to safeguard the judiciary’s independence or to possibly influence Misra’s handling of the matters he is to adjudicate on?

Tumultuous tenure

Misra took over as Chief Justice of India in August 2017, when the Supreme Court was battling controversy over a suicide note purportedly written by former Arunachal Pradesh Chief Minister Kalikho Pul. The note contained startling allegations of corruption against senior judges, including then Chief Justice JS Khehar. It also named one Aditya Misra as a relative of Dipak Misra.

The following month, the court was thrown in a crisis. The Central Bureau of investigation had named a former Odisha High Court judge as an accused in what is known as the medical colleges scam. Some lawyers petitioned a bench led by Chelameswar for an investigation into the matter, but Misra intervened and took the case away from Chelameswar’s bench. He had done so, Misra explained, to assert the chief justice’s right as master of the roster. The case was allotted to another bench, which slammed the petitioners, stopping just short of initiating contempt proceedings against them.

In January, the rumblings within the Supreme Court burst out in the open when Chelameswar and Justices Ranjan Gogoi, Madan B Lokur and Kurian Joseph, in an unprecedented move, called a press conference and charged Misra with functioning arbitrarily. Misra then formulated a portfolio-based roster to assign cases to the judges but kept important matters with himself.

On March 21, Chelameswar wrote to Misra expressing concern about the government’s interference in judicial functioning. He pointed to the chief justice of the Karnataka High Court initiating an inquiry against a subordinate judge based on a complaint directly forwarded by the Union law ministry. The Supreme Court collegium had already confirmed this judge for elevation to the High Court, Chelameswar argued, so the law ministry had no business writing directly to the High Court’s chief justice, neither did the chief justice have any authority to launch an inquiry. It is a troubling development, Chelameswar suggested in his letter, and sought a full sitting of the apex court to discuss it.

In the meantime, the Congress has begun consulting other parties to initiate impeachment proceedings against Misra. A draft note circulated by the party alleges irregularities in the purchase of a piece of land by Misra.

Judicial independence

Commenting on Britain’s unwritten Constitution, the journalist Sidney James Mark Low remarked in 1920: “We live in a system of tacit understandings. But the understandings themselves are not always understood.”

This could well apply to what is transpiring in the Indian judiciary today. The understanding generally is that the Supreme Court is going through a crisis, centered on the credibility of its top judge. It seems the court itself is divided: on one hand, a few judges feel the sanctity of judicial independence is being violated and on the other, the majority of the judges are silent. They have not found it necessary to publicly comment on the problems that their colleagues have highlighted. This applies to the chief justice himself, who seems to have decided to weather the storm by keeping quiet.

There are enough symptoms to confirm the malaise that Chelameswar has identified in his March 21 letter. On January 10, for example, the Supreme Court Collegium, consisting of its five senior-most judges, recommended two names for elevation to the apex court – Justice KM Joseph of the Uttarakhand High Court and senior lawyer Indu Malhotra.

The central government has sat on the recommendation. Having waited two months for her confirmation, Malhotra has to return to her practice. Several recommendations for appointing High Court judges are pending as well.

Here, a part of the problem lies in the opaqueness of the Supreme Court. It is not known if Misra took up the delay in confirming these appointments with the central government. That the appointments have still not been approved indicates that even if the collegium’s dissatisfaction was communicated to the government, it has had little effect. Is this because the authority of his office has been diminished by the string of controversies the chief justice has found himself in over the last few months?

As the administrative head of the Supreme Court, the chief justice is expected to zealously guard judicial independence. In discharging this responsibility, conventions such as keeping matters within the court cannot be the guiding factors. As is often said, sunlight is a potent disinfectant. The Supreme Court may have to decide if it wants to use the public’s glare to make the executive accountable.

Under the lens

While his inadequacies need to be pointed out, it is important to remember that Misra has authored some good judgements during this period, the latest putting restrictions on khap panchayats and affirming the right of inter-caste and inter-religious couples to choose their life partners.

The Constitution has provided for impeachment in extraordinary situations. Given the urgency with which the Congress has moved to impeach Misra, it is reasonable to believe that the party sees the happenings in judiciary as being extraordinary.

There may be political undertones to this move, however. There is talk of the Opposition being wary of how Misra’s bench would settle the Ayodhya dispute, for it is bound to hugely impact the 2019 parliamentary election. A favourable verdict for the Hindus could see the Bharatiya Janata Party claiming credit for facilitating the construction of a Ram temple on the site where the Babri Masjid stood before it was demolished by a Hindutva mob in 1992.

When the court started hearing the case early this year, Congress leader Kapil Sibal, representing one of the petitioners, wanted the proceedings to be shelved until after the 2019 election. It was seen as an attempt to keep Misra away from the case as he retires well before the election.

This has cast a shadow on the impeachment motion the Opposition parties are trying to move. They know they do not have the numbers to pass the motion if the BJP decides to back Misra. Thus, the process could be seen as just a tactic to force Misra to go slow in this case. If this is the intention, it would be construed as the abuse of a Constitutional tool.

Still, it is telling of the Supreme Court’s image today. That the Opposition feels the court’s writ could be manipulated by the ruling party is an unprecedented situation. This alone is enough reason for the chief justice to allay all such fears by taking his colleagues into confidence and openly asserting the judiciary’s independence. In fact, this may be the only way to deal with the crisis.