OPINION: Impeachment Dilemma Pushes the Supreme Court through its Vaishamya Khand

“What is left of the Dharma of kings ? ..This ancient eternal Dharma is lost among the Kauravas .. .. for this Foul man, disgrace of the Kauravas, is molesting me and I cannot bear it …” Draupadi pleads  as Duhshasana tries to disrobe her in the assembly. She further  poses a legal question before the Assembly and to the Dharmaraja “ Whom did you lost first, yourselves or me? “The patriarchal Bhishma tries to answer this question by saying the wife is the property of the husband and may be that question does not arise at all for considering the legality of the locus of the Slave husband to pawn the wife. Nevertheless,  his scholarliness does not permit him to answer the question but calls for  deliberation and he himself says he is in a dilemma and hence can’t answer the issue raised by Draupadi based on the cosmic rights .

Today , the “Lady Justice” married to the rule of law  is mooting similar question in the nations Darbar , i.e all the  Constitutional institutions ,  the combination of which constitutes a Darbar of the ancient times  . No doubt,  she is being molested. And  being molested by those who are supposed to protect her by being the sentinel on the qui vive. The protectors of the Constitution , which is the mirror representation of the lady Justice in the nation , are divided and the division has come out in  public. Those who are supposed to end the chaos and repair , if in case one of its machinery chokes , is manipulating such chaos and contributing to the tension. No doubt there are things rotten with in the system and rot has now gotten to the root. The cancerous growth of the root can now be cured only by a surgery . The attempt of the opposition of the was such , which is the only permissible available option under the Constitution.

Going through the allegations made in the charge , which I am not repeating here,  one would certainly have the feeling that the Master of the Roster case ,  was necessarily a master stroke for the saving the administrative  powers vested with the Chief Justice of India . But what was the order that was recalled by such assertion of power by the constitution Bench of the Constitutional Court . The Order by Justice Chelameswar was to constitute a bench comprising of the Five Senior Judges of the Supreme Court to consider the issue which had aspersions as against the Chief Justice of India, the Master of the Roster . Mind You , the Chief Justice Of India, by virtue of the precedents  and practice is the Senior most Judge in the Supreme Court by virtue of his being elevated  early to the supreme Court  comparison with others and the out going Chief Justice , after the Supreme Court Bar Association Case   has been , by default , recommending the Senior Most Judge as the Next Chief Justice  which has been accepted by the President till today . The issue at hand , since it involved the chief Justice himself , whether the allegation was true or otherwise , would necessarily ought to have wanted him , as per the Natural Justice , the cosmic Dharma,  for which Draupadi  was also pleading in the Mahabharatha  , to recuse himself from deciding any issue including the subsidiary  issues there under  . In that event,  there was no necessity for the Chief Justice to have constituted a Constitution Bench to decide the master of the roster issue at all , is what the contenders of the fair play are pleading. There are other allegations as well which show light to the rot that is subsisting in the system and the judiciary . This prompted all of the collegium members , not alone but in unison ,  to come out against the way in which the chief Justice was acting . Also , they had to come in public when attempts of correcting the system from within, failed .

Again, there were failed attempts by the members of the bar as regards various issues including the death of a Judge who was deciding a very sensational case , the death would have been natural or otherwise but the things would have been more transparent if in case the Investigation was ordered and the faith of the public on the credibility of the institution could have been upheld firm without any chance for suspicion at all . Things being so, the Opposition in discord,  with some prominent embers like Dr. Manmohan Singh and P. Chidambaram ,  who are also litigants before the highest Court  , being reluctant ,  thought it fit that the provision of the Constitution needs to be invoked for the removal of the Judge  ,as there are allegation of misbehavior on the part of the Judge of the Supreme Court of India , and since that the post of Chief Justice of India not being above law and not being exempted under the Constitution .The formalities were complied with and the memo of motion was presented before the Chairman of the Rajyasabha , the Vice President of India under Section 3  of the Judges (Inquiry) Act 1968 which is passed as per the mandate of Article 124 (5 )  of the Constitution of India . It was presented on the 20th day of April 2018 . On 23rd April 2018 , the Chairman of Rajyasabha dismisses the petition holding that there has not been any “proved misbehavior” on the part of the Judge who is sought to be proceeded with . The order passed by the Chairman has serious repercussions. And this is the first time , after Justice Shahs incident where Loksabha Speaker Dhillon dismissed the motion on the threshold , in the history of India that such a motion is dismissed at the threshold holding that there is no proved misbehavior. As per the provisions of the Judges Inquiry Act , the Chairman has only the power to constitute the Committee if incase the petition is presented in terms of the Act and there is an allegation of the misbehavior as per the provisions of the Constitution. He does not have any power to enquire whether the  misbehavior is proved or not . He can consult any person as he deems fit . But the purpose is to understand whether the alleged misbehavior , if proved , would be resulting in removal. Here the Vice President has conducted the enquiry himself and has dismissed the motion ,which is not with in his power .

The power to conduct the enquiry and to understand whether the same is proved or not is for the Committee that is to be constituted under the Act . The Committee under the Act as per the provision of Section 5 and Section 6 can , if the misbehavior is not proved , dismiss the motion. Hence the power of the Vice President at the stage of Section 3 is in pari-materia to that of a magistrate taking cognizance to see if there is a prima facie allegation , the proof of which he should not be concerned at this stage at all . Hence by the order dated 23rd April 2018 the Vice President has violated the Judges Inquiry Act and the Constitution of India . In  Sub Committee on Judicial Accountability .v. Union of India and Ors (1991 4 SCC 699  , the Constitution Bench of the Hon’ble Apex Court has held that the proceedings of the Speaker / Chairman or the  Committee constituted under the Act  till such time the report is tabled before the Parliament is only statutory and the provisions of Article 122 , giving privilege , would not be available to such proceedings.  Therefore the order dated 23.4.2018 would be amenable to challenge before the Constitutional  Courts on various grounds including Judicial Review.  In the challenge , even the Wisdom of the opinion of the Vice President and the reasons there under will be attacked  . This is when again the Master of Roster case comes back hitting against the contenders for  removal of the Judge .

The chief Justice being involved personally , as per Natural Justice , needs to remain aloof to the issue even when deciding the Bench that consider the case , and the natural Justice , the obligation to follow the same for any Oath driven Judge , mandates that even the Judge who is interested in the issue need to recuse himself from deciding the roster and allocation of the case . Would the Chief Justice do that ? Would the Judges in the collegium who came up with the allegations against the Chief Justice also recuse from deciding the case ? These are all questions that the Apex Court will have to answer in few days to come ?

This reminds us of the famous passage which has always been reminded to us by Justice Krishna Iyer “Ever so High You are;  the law is above you “ . But here the phrase may be true but the caveat is the though the law is above the Judges of the Supreme Court also , the Judges of the Supreme Court is the one who have to  decide what the law is . Hence the phrase the law may be above me but I would decide what the law is .   Indians have  not  matured to the extent of having independent opinion irrespective of our political ideology .  Our politicians failed us , when the issue of removal  of Justice Ramaswami was put to vote . They remained absent  from the Parliament thus failing the motion and failing the nation itself . Today , Mr. Kapil Sibal is in the forefront fighting the battle , similar to the one he  made the nation lose and winning it for his client and taking himself to the  epitome of popularity  . Can the cosmic law get the same person to swallow the  venom back and save the nation ? Let us wait and watch till which time the Darbar and the Nation lingers with the legal Tangle “ Whom did you lose first,  Yourself or me ?” . The Lady Justice , the Draupdi of the modern era poses the question again and again the answer to which only Vikarna attempted to give and  every other King remained a mute spectator .  The Power of the question won Draupadi ,  the freedom for herself and her husbands . Hope the power of the question of the Lady Justice  , wins us our Democracy and its institutions , its Independence .


Renjith Marar is an Advocate practicing in the Supreme Court of India. Views expressed are personal and does not reflect those of The Indian Jurist.


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