‘The Supreme Court won’t be regarded as a strong court now’: Former CJI Ahmadi on impeachment move

Justice AM Ahmadi – who was the 26th chief justice of India between October 1994 and March 1997 – is extremely upset over the raging controversy that has entangled the judiciary. In an interview with Scroll.in, Ahmadi brings his long years of experience to examine the impeachment motion moved by the Congress and other parties against Chief Justice Dipak Misra and its dismissal by Vice-President and Rajya Sabha Chairman Venkaiah Naidu on Monday, the swirl of controversy in which the Supreme Court is trapped, why Justice Ranjan Gogoi is the unspoken hero of the intra-judiciary tussle, and matters pertaining to the Supreme Court roster.

Ahmadi said he believes that after the four senior-most judges of the Supreme Court approached Misra with their grievances, he should have sat them down and resolved the contentious issues brought up by them. Neither side, he said, behaved “statesman-like”. He, however, praises Justice Ranjan Gogoi for staking his career by being part of the press conference that he and the other three senior-most judges held in January to voice their disquiet. Ahmadi also feels the Supreme Court’s reputation has taken a beating.

Excerpts from the interview:

Vice-President Venkaiah Naidu has dismissed a motion to start impeachment proceedings against Chief Justice of India Dipak Misra. Do you agree with Congress leader and senior lawyer Kapil Sibal’s view that Naidu was not entitled to dismiss the motion, and that all he had to see was whether the motion was in accordance with legal provisions?
I do not wish to enter the political arena, largely because I have not studied the rules as to what the vice-president’s conduct should be once the motion of impeachment is presented. Nevertheless, the vice-president was faced with an either-or situation. He opted to take one position, and I think that is the end of it.

Can the vice-president’s decision come under judicial scrutiny?
Tell me, what does not come under judicial scrutiny?

Yes, but then it has to go to a constitutional bench. The chief justice will have to constitute this bench. We are back to the situation that triggered the crisis that has dragged on for months?
Wohi bedhangi raftar, jo pehle bhi thi, abhi bhi hai. [The haphazard conduct, as in the past, so in the present].

Nevertheless, what do you think of the charges levelled against the chief justice in the impeachment motion?
The question to ask is: are the charges tentative? Or is there some positive material regarding the charges? Judging from what the press has reported, I think the charges are tentative. The impeachment motion could have been avoided. I do not think allegations in the motion can be classified as positive.

Naidu rebutted each of the five allegations citing reasons and making sweeping observations. Should he have done that?
He should, in my opinion, have said that after studying the impeachment motion, he decided he cannot admit it. His remarks were not statesman-like.

You think he was over the top?
Yes.

What about the Master of the Roster controversy?
There is just no doubt that the chief justice is the Master of the Roster.

Did you as chief justice decide on your own the allocation of cases to your brother judges? Or did you also consult some of them?
I would take the decision and constitute the benches – the Constitution bench, the tax bench, and so on. I never faced any difficulty. The distribution of cases is the chief justice’s prerogative. The chief justice has a sense of the expertise of every judge, and that is kept in mind while constituting a bench.

What about the norms followed in constituting a Constitution bench?
Generally, the senior judges are on the Constitution bench, particularly the two who are the senior-most.

Since November, the controversy has been largely about senior judges being ignored.
There can be situations in which the chief justice has to constitute a Constitution bench that might not have the two senior-most judges. It could include the third, fourth or even the fifth most senior judges. With the number of judges in the Supreme Court increasing, there could be greater chances of this happening now than before.

What happens when someone raises the issue – as the four senior-most judges of the Supreme Court did at a press conference in January – that certain cases are being allocated to certain benches to influence the outcome?
When certain types of cases go only to certain benches, eyebrows are raised. That happens.

Assume that doubts had been raised about the allocation of cases when you were chief justice, what would you have done?
Well, I would have called my brother judges, sat down with them and thrashed the matter out.

Presumably, the current chief justice has not taken the course you would have taken?
Yes.

What do you think about the four judges holding a press conference?
That could have been avoided.

But what if the four judges thought the only recourse left for them was to go public with their disquiet?
Statesmanship was lacking in both the chief justice and the four judges. How do you handle a problem that is brewing and threatening to blow up into a full-fledged crisis? You take steps to lower the temperature so that the issue does not turn into a crisis. This is what is normally done unless, obviously, you turn the entire thing into a matter of prestige.

Okay, so the chief justice should have sat down with the four judges. What could the four judges have done in case the chief justice was not willing to sit down with them and thrash out the matter?
Once the four judges wrote a letter to Misra in the first instance [that is, before holding the press conference], the ball was in his [Misra’s] court. He should have called them and resolved the issue. All this [the months of controversy] would not have happened then. The four judges would not have considered it necessary to go to the press.

What do you think about Justice Ranjan Gogoi’s participation in the press conference?
Gogoi is next in line to become chief justice. There is no doubt that he felt very strongly about the issues that were raised. Justice Gogoi has certainly staked his career. In India, normally, no one puts his head on the chopping block. Gogoi did. I do not know him intimately, but he does come across as a fine gentleman. I hope the government will not commit the mistake of bypassing Gogoi after Misra retires. If the government does that, it would unnecessarily create another problem.

There is a convention that has to be followed. The outgoing chief justice recommends who should succeed him. The norm that has been followed for a very long time is that he recommends the senior-most judge after him. Normally, the government is expected to accept the recommendation unless it has a very strong reason not to do so. Obviously, the reason cannot be that the judge whose name has been recommended does not toe the government’s line.

We cannot return to the days of [S Mohan] Kumaramangalam. [A minister in the Indira Gandhi cabinet, he was the driving force behind the supersession of three judges to make the fourth senior-most judge, AN Ray, chief justice]. He would say the government wants judges who would toe its line and help the government implement its policies. That was a disastrous statement. It was not statesman-like.

What kind of beating has the Supreme Court taken with the current controversy that has dragged on for months now?
The current controversy has made the Supreme Court lose its sheen. Once, the Indian Supreme Court was considered the most fiercely independent of apex courts around the world. I do not think the Indian Supreme Court will be regarded as a strong court now. It is not just I who says this. [Lawyer] Fali S Nariman has called it a “black day”.

But Nariman was making that point in relation to the impeachment motion.
It is part of the same continuum. Nariman is naturally upset at what is happening [in relation to the judiciary], and so am I. I have served in the Supreme Court. I retired from there leaving its prestige intact. As long as I am alive, the institution will be part of me. I feel very sad and disappointed to see the Supreme Court being dragged into a controversy. You do not have to find who is at fault. The fault is that it happened. Those who could have resolved it, they did not take a statesman-like decision.

Under Indira Gandhi, it was a fight between the government and the judiciary. But the fight now has become triangular involving the government and one section of the Supreme Court versus another section of the Supreme Court.
It is not correct to say that it is a triangular fight. It is, in fact, not a fight. The chief justice and four or five judges have had differences of opinion. They should have sat together and resolved those differences. The chief justice has to be an astute person – he should see what is coming and not turn his face away. He should face it squarely, and try to find a solution with his colleagues. Brother judges are not the chief justice’s enemies, they are his colleagues.

That said, only the chief justice can take the initiative to resolve differences. If he does not, then others can do nothing about it. That is why they [the four judges who held the press conference] probably decided that they would go the way they did. The chief justice of India should have nipped it in the bud.

So why did Misra not follow this prescription?
I do not know. If I adopt the attitude that the roster is my prerogative, my concern alone, then it becomes an altogether different matter. True, someone has to make the roster and assign work…

But it can also be done in consultation.
Don’t you think there would have been differences? The chief justice could have again found himself in a tight situation.

In November, the mentioning of a petition on Prasad Education Trust was done before Justice J Chelameswar because the Constitution bench headed by Misra was listening to another matter. Is this normal practice?
Normally, even if the chief justice is busy, the matter must be mentioned before him and he may choose to assign it to another bench. In other words, you cannot directly go to the second or third senior-most judge, you must come through the chief justice. That is the norm.

Did the former chief justices not try to resolve the controversy raging in the Supreme Court?
No, unless someone seeks your help, you do not go. In this regard, a Gujarati proverb is pertinent. In English, it means, “don’t place a golden necklace in a water utensil”.

Is the Supreme Court splitting ideologically?
It should not happen.

The vice-president, while rejecting the impeachment motion, said, “We cannot allow any of our pillars of governance to be weakened by any thought, word, or action.” Yet, the government, of which Naidu was a member just months ago, has been sitting on many of the Supreme Court’s recommendations on the appointment of judges.
There is a convention that the Supreme Court collegium’s recommendations on the appointment of judges ought to be accepted unless the government has information that members of the collegium were not privy to. The government can send the recommendation back to the collegium. That is one way of dealing with it. But to sit on the collegium’s recommendations in silence and do nothing about it, well, that is not how the system should function. Ultimately, the government must take a decision one way or another. Once the collegium sends back its recommendation a second time, I think it should be accepted.

The government has been sitting on the elevation of Justice KM Joseph to the Supreme Court. It was Joseph who had quashed the imposition of President’s rule in Uttarakhand. This has led many to believe that the government is signaling that it does not want judges who oppose the government’s decisions.
What I said in Gogoi’s context, I will repeat here as well – we cannot return to the days of Kumaramangalam.