February 20, 2020
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‘Impeachment Of CJI Is Nonsensical. Don’t Encourage The Idea’.

Eminent jur­ist and former Attorney General of India Soli Sorabjee on impeachment motion against the CJI, the unprecedented press-conference by the four senior-most judges of the Supreme Court, and the rights of the CJI as 'master of the roster'.

‘Impeachment Of CJI Is Nonsensical. Don’t Encourage The Idea’.
Photograph by Jitender Gupta
‘Impeachment Of CJI Is Nonsensical. Don’t Encourage The Idea’.

Three months have gone by since the four senior-most judges of the Supreme Court—next only to Chief Justice of India Dipak Misra—made public their grievances regarding the way he functioned. It was on January 12 that Justi­ces Jasti Chelameswar, Ranjan Gogoi, Madan Lokur and Kurian Joseph spoke about the CJI assigning cases to selective preferred benches in his capacity as the “master of the roster”. They particularly expressed displeasure about the way in which the cases of Justice B.H. Loya’s death and that of the Lucknow-based Medical College admissions scam, in which the CJI’s role itself has come under a cloud, were allotted.

The crisis in judiciary has not abated since. If anything, it has only escalated with the Opposition MPs in the Rajya Sabha collecting signatures to initiate impeachment proceedings against the CJI. The CJI, who is to retire on October 2 this year, is hearing some of the most crucial cases before the apex court. These include cases pertaining to Justice Loya’s death, validity of Aadhaar and Ram Janmabhoomi. Two of the judges, Justices Chelameswar and Joseph, are unrelenting in their public criticism of the judicial system under the CJI. Interference of the Executive in the appointment of judges to the Supreme Court is another issue that is rankling the puisne judges.

Bhavna Vij-Aurora spoke to former Attorney General of India Soli Sorabjee to put the entire imb­roglio into perspective. The eminent jur­IST says that he is “distressed” about the developments of the past few weeks and hopes that all differences will be settled in an amicable manner for the sake of the credibility of the country’s judicial system that its people look up to.

There is a move to impeach the CJI. Some Rajya Sabha MPs have already signed the petition to bring the mot­ion. Do you think there are grounds for the CJI’s impeachment?

There are no grounds to move an imp­eachment motion at all. The move is absolutely ill-conceived. Even a mere proposal is enough to damage the public perception of independence of Ind­ian judiciary. You may not like some verdict of a judge or of the Chief Justice. Some order or judgements may have been unconventional but that is no ground for impeachment.

Photograph by PTI

In any case, there won’t be requisite numbers for the imp­eachment process to begin. Therefore, the proposal is an exercise in futility, but with a great potential to damage the institution. (The impeachm­ent motion against the CJI can either be initiated by 100 MPs in the Lok Sabha or 50 MPs in the Rajya Sabha.) Imp­eachment is a serious matter. It can be moved on grounds of “proved misbehaviour” that would mean corruption, bribery, unbecoming conduct or gross miscarriage of justice. I am very distressed about this entire talk of impeachment. It is nonsensical and should not be given encouragement.

The four senior-most judges came out and addressed a press meet, pointing fingers at the CJI. Was that the trigger for the entire controversy?

That press conference should never have happened. The judges should have tried to resolve the matter internally.

"By going public, the judges open the issue to politicians to jump into the fray. They don’t realise that it shakes the people’s confidence in the judicial system."

The judges had claimed they were for­ced to come out publicly, as their grievances weren’t addressed internally…

That is no excuse. By going public, they open the issue to politicians to jump into the fray. They don’t realise that it shakes the faith of the people in the judicial system. The judges should have kept at it. They should have consulted former chief justices. They could have sought the help of the Attorney General, other jurists. For the people, judiciary is the last resort for justice and their faith must remain int­act. The faith of people in the institution should not be diminished.

What do you think about CJI Misra presiding over the case to decide the powers of the Chief Justice, declaring he has full powers to decide on allocation of cases and setting up benches?

Though he is right to claim that the CJI is the first among equals and also to rei­terate that he is the master of the roster, he should not have heard the matter himself. The CJI should have recused himself from hearing the matter. He should have let Justice Chelameswar to hear the matter.

Justice Chelameswar refused to hear Shanti Bhushan’s appeal questioning unbridled powers to the CJI as the master of roster…

It would be wise for Justice Chelameswar to desist from public outbursts and making statements. He is a learned and knowledgeable judge. He should retire in good grace. There is no need to resort to petulance. (Justice Chelameswar is due to retire on June 22, but that will be the middle of Supreme Court vacation; so May 19 will effectively be his last working day.)

What about the questions being raised about the Executive’s interference in the appointment of Supreme Court judges? Justice Joseph has written to the CJI, asking him to act against governmental interference as it is affecting the independence of judiciary.

"The collegium system may not be perfect. But it is better than any others, including the NJAC. The Executive appointing judges will only politicise the whole legal set-up."

The Executive cannot interfere in the appointment and elevation of judges. The Executive can give its input or inf­ormation about the impending appointment but once the collegium decides on the elevation, it has to concede. The government cannot sit on the recommendations of the collegium like is the case now. (The government has not cleared the names of Uttarakhand High Court chief justice K.M. Joseph and senior lawyer Indu Malhotra for elevation as SC judges despite the collegium’s recommendation three months ago.)

Your views on the collegium system?

The collegium system of appointments of judges, like all human institutions, may not be perfect. But it is much better than any other system like the proposed National Judicial Appointments Committee. The Executive appointing judges will politicise the system; that will shake people’s faith in the institution. The only thing is that the members of the collegium must act in the spirit of solidarity and display leadership, and not the mentality of petty politicians. They have a duty to resolve differences in an amicable manner and not display bitterness if somebody’s viewpoint is not accepted.

How do you think the current crisis be resolved?

The Chief Justice needs to play a big role in defusing the crisis. He should hold consultations with the disgruntled jud­ges and win over his colleagues. He must display statesmanship and leadership. Whatever apprehensions are there, the CJI should try to assuage them. While he is the master of roster, he must take care to allocate matters as per the familiarity of the judges regarding the issue at hand. That’s what used to happen earlier. Tax matters were allocated to judges who understood such things. Criminal matters were given to judges who had some expertise in the area. Broad parameters should be defined for allocating cases. The office of the CJI must not be weakened. The institution of the judiciary must not be weakened.

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