The Daily Fix: Why didn’t Supreme Court say who set up bench to hear impeachment challenge?

The Big Story: Bench press

Bad faith seems to have permeated just about every aspect of the current Constitutional crisis, in which the conduct of the Chief Justice of India has been questioned, first by fellow Supreme Court judges and later by Opposition Members of Parliament seeking impeachment. On Tuesday, the matter continued to fester. A seemingly sensible decision that the petition challenging the dismissal of an impeachment motion should be heard by the five senior-most judges whose names are not involved in the case turned questionable when the court refused to explain how it had ordered that decision.

To recap: In January, four Supreme Court judges held an unprecedented press conference questioning the conduct of the Chief Justice of India Dipak Misra, particularly pointing to his selection of benches for matters, one of which is a corruption case in which his own orders have been questioned. Not much came of the press conference within the court, but it prompted political parties to move into action. In April, a clutch of seven led by the Congress moved an impeachment motion. This was summarily dismissed by Rajya Sabha Chairman Venkaiah Naidu, and the Congress in turn challenged this dismissal in the Supreme Court.

This was always going to be a complicated situation: Would the Chief Justice constitute the very bench that would hear the case challenging the dismissal of an impeachment motion, especially when the motion itself questioned the manner in which he was constituting benches? Would the case by-pass the Chief Justice and go instead to one of the next four senior-most judges, whose contentions are in fact the source material for the impeachment motion?

In the event, the case was abruptly handed over to a Constitution Bench featuring the five senior-most judges not involved in the matter – essentially bypassing the Chief Justice and the four judges who had spoken out against him. This makes some sense, except for the question of who set up this bench in the first place. The Chief Justice is Master of the Roster, meaning he has full powers to form benches, so did he order the formation of this one? If so, is that problematic, considering it pertains to his own impeachment?

When senior lawyer and Congress leader Kapil Sibal made this query before the bench on Tuesday, it refused to provide the administrative order that directed the formation of the bench. After much back and forth, Sibal withdrew the petition, saying there was no point proceeding without understanding how the bench had been set up. His fellow advocate Prashant Bhushan then filed a Right to Information request, demanding to know how the bench was set up.

The Supreme Court seems to have done the right thing in the matter, giving the case to the five senior-most judges whose names are not involved. Yet the manner in which it was done and the refusal to provide the order naturally raises doubts about the whole process. Similarly, the Congress’ decision to keep pushing for impeachment made sense after the unprecedented press conference by the judges. Yet its choice of moving forward months later after the Loya judgment and without a thorough endorsement from party leaders made the move seem more tactical than genuine. And Naidu’s almost overnight order dismissing the impeachment motion is even more suspect, even if some of the conclusions he drew were based on genuine concerns.

The reputation of the top court of the land remains perched on a tightrope, as Bhushan’s RTI proceeds, while the MPs wait to move another petition challenging the dismissal of the impeachment motion. The court had the opportunity to settle this question, just as the Chairman of the Rajya Sabha had the chance to order an inquiry and resolve all questions about the Chief Justice’s actions. Instead, for now, a sword will continue to dangle over the Supreme Court of India – an unfortunate situation moving into an election year where judicial decisions could have outsize effects on the future of the country.

Punditry

• “Tagore could see that violence is implicit in the ‘idolatry of the Nation’ because, as he wrote in an essay on nationalism, ‘man’s power of sacrifice is diverted from his ultimate object, which is moral, to the maintenance of this organisation which is mechanical’,’ writes Avijit Pathak in the Indian Express.
• “Today the Nagas have transcended the victimhood syndrome and shed their hatred for an India once perceived to be the enemy,” writes Patricia Mukhim in the Hindu. “The current interlocutor, RN Ravi, too has been most open and accepting of a broad spectrum of views from a cross-section of Naga civil society. It is in this climate of mutual respect that the Framework Agreement ought to proceed, which is what drives it, according to Mr. Ravi.”
• “I went back to [the man who hit me]”, writes Megan McArdle in the Washington Post. “And even with 25 years to think about it, I’m still pondering why.”
• Ajai Shukla explains how new US sanctions against countries that buy weaponry from Russia could affect India’s defence plans.

Giggle

Don’t miss

Shoaib Daniyal explains how, in actively keeping Muslims out of political life, the Hindu Right-Wing is actually proving MA Jinnah’s predictions about the Indian state to be true.

Yet, as Hindutva takes control in India, it is worthwhile revisiting Jinnah’s prediction that Muslims in India would be shut out of power as a permanent minority in a majoritarian system. In hindsight, Jinnah’s solution might not have been correct but it seems his identification of the problem, as the commentator Aakar Patel noted in the Times of India, was.

For example, Muslim representation in the Lok Sabha is at an all-time low with just 22 MPs in the 545-strong current House – less than a third of what it should have been were the Lok Sabha to mirror the Indian population. Even this small number is skewed, with 14 states having failed to elect a single Muslim MP in the last 25 years. A state like Gujarat has all of three Muslim MLAs in its 182-seat Assembly. In Uttar Pradesh, Muslim MLAs make up just 5.9% of the 404-member Assembly – while the community accounts for 19.2% of the state’s population.

If these headline statistics were not bad enough, Muslims have been excluded from local, state and national power structures under the current government. They are not given tickets to contest elections and, in some cases, prominent BJP leaders have made it clear in as many words that the party does not even want Muslim votes. As a result, treasury benches in legislatures have almost no Muslims, casting the community into a permanent minority status, locked out of power and dependent on majoritarian whims. Moreover, the BJP’s charge of appeasement means that other parties are also wary of offering Muslims benefits that would otherwise be a normal part of a democracy. Political marginalisation, of course, has a host of knock-on effects including, most prominently, physical safety – with hate crimes against Muslims on the rise.