India's judges don't like to be judged, and petty politics is not going to fix it

Something in the way the Congress Party has moved an impeachment (technically a removal) petition against the Chief Justice of India, Dipak Mishra, reminds one of Chetan Sharma's notorious full-toss delivery to Pakistan's Javed Miandad in a cricket match at Sharjah, which is now part of India's collective memory as a botched-up moment of national shame. The petition, rightly disallowed by Vice President Venkaiah Naidu in his capacity as the Chairman of Rajya Sabha, can be described as a moment when the opposition party snatched defeat from the jaws of victory.

Here's why. Only a week earlier, Congress president Rahul Gandhi seemed to have captured the national imagination with only a year to go for the general elections, when he staged a candlelight demonstration seeking justice for an eight-year-old girl raped in Kathua near Jammu, and another at Unnao where a BJP MLA is in the dock after being accused of rape. The BJP was clearly on the backfoot, and only the hurried promulgation of an ordinance to enable death sentences for child rapists seemed to address a damage to the ruling party.

But before you could say "Advantage Congress" Kapil Sibal led a petition against the CJI. There is no need to go into details apart from saying that it lacks muscle so much so that even Congress leaders like Salman Khurshid, and from what we know, P Chidambaram and former Prime Minister Manmohan Singh are not part of it. Politicising a sacred institution like the judiciary is no way to fight an implicit act of politicisation that the Congress is suggesting.

In truth, there is a lot that is not so well with India's judiciary because politicians or clever lawyers can use evidence-based jurisprudence to indirectly obstruct justice. Add to this the fact that the judiciary as a whole is independent but in a way not completely accountable to the public. There is definitely a case for judicial reforms but the real issue is that this has to be done in a manner that wins public confidence, maintains respect for the judiciary as an institution and does not reek of petty politics. Doing all that requires a lot of patience and method that seem to be missing in the whole game.

Last November, a Constitution Bench of the Supreme Court ssaid the CJI was indeed supreme in being the "master of the roster" after an unseemly controversy on the issue and earlier this month the highest court ruled on itself with Justice Dhananjay Chandrachud declaring in the same breath that all judges were equal but the CJI is "an institution in himself."

The "first among equals" principle sits well in a cabinet system of governance in which the Prime Minister and his colleagues are accountable to a Parliament elected by the people. To use the same yardstick in the judiciary is a bit iffy. Consider the fact that the judiciary is neither an army-like hierarchy nor a bottom-up institution like the legislature, nary a bureaucracy subject to political control.

The self-same Justice Chandrachud went one more step last week in a public interest litigation (PIL) plea on the seemingly mysterious death of Judge Loya that it was a judge's conscience call on whether or not to recuse oneself from hearing a case. 

And now consider the difficult moments of January when four sitting judges of the Supreme Court virtually rebelled against the CJI in a public protest against the manner in which cases were being assigned and also discussed judicial appointments.

Soon after the Narendra Modi-led government came to power, in 2015, the Supreme Court rejected the National Judicial Appointments Commission (NJAC) Act and the 99th Constitutional Amendment that sought to give politicians and civil society a say in the appointment of judges to the highest courts. The current collegium system is essentially a top-down closed-loop approach keeping the entire business within the judiciary.

Given all, that the judiciary in India definitely has three serious issues that need to be addressed. First is the limitation of a system of jurisprudence in which the executive has to perform better to ensure justice. The second is the business of judges' conduct, in which so far there has been a narcissistic system of self-appraisal. The third is the business of appointments, in which there seems to be an element of independence without accountability.

I would prefer the legislature, the media and the civil society to raise the matter with the President and trigger a national debate with wide awareness on the issue. A wide sample of former Supreme Court judges can be brought into the picture to give it a moral pre-eminence for the society as a whole. What we have seen instead is a politicisation of sorts both within the legislature and within the judiciary. That reeks of street politics, not statesmanship.

As for the Congress Party and its comradely groups, things have reached an ironic point where a rejected petition on the Supreme Court is being taken to the Supreme Court itself. What remains, therefore, is the "legal fraternity" that only seems like a fancy expression for a divided house of squabbling lawyers. It is time we as a nation rose above all that to forge a new consensus that protects the sanctity of the judiciary while avoiding petty politics.

(Madhavan Narayanan is a senior journalist who has covered politics, diplomacy, business, technology and other subjects in a long career that has spanned organisations including Reuters, Business Standard and Hindustan Times. He is currently an independent columnist, editor and commentator. He is listed among the top 200 Indian influencers on Twitter. He tweets as @madversity)

(Disclaimer: The opinions expressed above are the personal views of the author and do not reflect the views of ZMCL.)