Stand united SC, don’t let apex judiciary be split down the middle

The Supreme Court of India (SC) is embroiled in an unprecedented crisis. In a press conference on January 12 this year, four outstanding judges had raised a critical issue before the nation: the independence of the judiciary. 106 days thereafter, events have proved how correct four top judges were.

On April 19th, a three judge bench of the SC delivered the Loya verdict, declining investigation into the sad demise of the judge. In the meanwhile 71 parliamentarians had alre ady signed an impeachment (removal) motion against Hon'ble the Chief Justice of India (CJI) Dipak Misra. The motion was moved only on April 20, a day after the Loya judgment. Three days thereafter, on April 23, Hon'ble Vice President Venkaiah Naidu refused to admit the motion. After another three days, on April 26, government cleared an outstanding member of the bar, Ms. Indu Malhotra, to be elevated as a Judge of the SC, but sent back the name of another outstanding Chief Justice K.M.Joseph to the SC Collegium for reconsideration. Government sat over the file for 97 days before splitting it in breach of directive given by then CJI Lodha in 2014.

While the Loya judgment is now a closed chapter, murmurs about its legality subsist. It is being whispered that a review petition is in the offing.  Nothing wrong, except that recently a trend has set in, whereby, the finality of the SC's verdict is being challenged from within. There have been instances of a two Judge bench verdict being overruled by a three Judge bench, or a three Judge bench verdict being overruled by a five Judge bench.

The SC is not a court to hear intra court appeals.  Besides, the doctrine of "Stare Decisis", that is, to stand by things decided, must be respected. An impression must not be allowed to gain ground that a verdict is dependent on the vicissitudes of the composition of the bench. Ideally, and hypothetically, had CJI Misra recused himself from hearing the Loya case, there would have been no murmur, albeit, even with the same outcome. Consequently, critical analysis about Loya verdict is unlikely to die anytime soon. This was entirely avoidable.

As regards the motion to remove the CJI, the process itself is political since only parliamentarians can initiate such a motion. To expect that parliamentarians will eschew politics is puerile. And the Vice President has every right to either admit or refuse to admit the motion under Section 3 (1) of the Judges (Inquiry) Act, 1968, framed in furtherance of article 124 (5) of the Constitution of India.

The VP's post is non political and he has nothing to do with any politics, if at all, behind the move. But has the VP acted correctly? He has refused to admit the motion since charges/allegations against the CJI have not been "proved" beyond reasonable doubt. The question of "proof" does not arise before instituting an inquiry. This is where the VP appears to have erred.

The word "proved" has been mentioned in article 124 (4), and the VP has quoted article 124 (4) in his order. The power of article 124 (4) is exercised by the President, not by VP. VP's power is limited to article 124 (5), which is procedural in nature. And the words "investigation and proof of the misbehavior" in article 124 (5) signify that without "investigation" there cannot be any "proof".

Besides, there is a distinction between the words "proved" and "proof of misbehaviour". Without initiating the process of investigation contemplated under article 124 (5), the VP has travelled to article 124 (4) to hold that charges have not been "proved" beyond reasonable doubt. Travelling to article 124 (4) was beyond jurisdiction of the VP, as exercise of powers of this article is within the exclusive jurisdiction of the President. Stage of article 124 (4) comes into play only after exhausting procedure to be followed under article 124 (5).  This makes the order dated 23.4.2018 passed by the VP legally suspect.

Now on April 26, government has attempted to browbeat the SC Collegium by raising queries about Uttaranchal Chief Justice K.M.Joseph's elevation after sitting on the file for well over three months. This is a direct assault on the independence of the judiciary since Chief Justice Joseph had delivered a telling verdict against the government and has a reputation of unimpeachable impartiality and integrity.     

The time is ripe for the entire SC to stand united and thwart the government's design to split the apex judiciary. Justice delivery system must not be allowed to be shattered by an authoritarian regime! Such regimes come and vanish, as we have experienced in the past!  Independence of the Judiciary is the cornerstone of our democracy!