Pratap Bhanu Mehta

Indian Express, 15 January 2018

In times of deep institutional crisis the invocation of moral conscience, a reminder that posterity will adversely judge those who sold their souls is, on the face of it, an important and courageous gesture. Four Supreme Court Justices, with formidable reputations, have taken the unprecedented step of going public with their disquiet about the chief justice. They have confirmed that the Supreme Court is facing a serious crisis of legitimacy. Their concerns deserve serious attention. If handled well, this could be a moment for the regeneration of the Court. But Indian institutions are also replete with examples where self-validating moral consciences quickly descend into a grammar of anarchy. The challenge will be to ensure that this does not happen.

This case is particularly tricky because of the nature of the charge. The core issue in this instance is that the justices have lost confidence in the chief justice, Dipak Misra. They are alleging grave misconduct on his part. In that sense, the allegations are personal. Long-standing structural issues relating to the power of chief justices, Memorandum of Procedure, appointments, etc are in the backdrop of this case. The Court has been acting arbitrarily in a lot of cases.  This crisis has been built up over a number of years with the complicity of a large number of justices. But this case is not about these issues. The judges can institutionally advocate reform. Some of the individuals will also, as future chief justices, have opportunities to initiate reform. Debate or advocacy over judicial reform does not require this kind of a public accusation. The core issue in this instance is the conduct of this particular chief justice.

This column is no fan of the chief justice. But we have to carefully parse out the issues. The core claim seems to be the chief justice has departed from convention and seems to be allocating cases in ways his colleagues find objectionable. But the gravity of this charge comes from two implications. First, that this is not just a departure from convention but an attempt to fix cases or manipulate the outcome, perhaps in politically sensitive cases.

The charges are serious only for this reason. Otherwise, the most you can accuse the chief justice of is lack of administrative skills and lack of judgement when it comes to handling processes. These are not trivial matters. But if it were merely these matters, they could have held their noses for a bit. It is only when you think that the stench of wrong doing is so overwhelming that you go public.

The second implication is that those judges to whom cases are being assigned will also somehow, at least in the chief justice’s mind, be amenable to being fixed. So the issue is not just four justices versus the chief justice. The issue is four justices questioning not just the integrity of the chief justice, but also by implication, of their colleagues. We are disposed to believe the truth of these accusations because there is a distrust in the integrity of the Court (like there was distrust of politicians).

But two difficulties arise. How do we adjudicate this core accusation? The charge is serious. For all we know, it may very well be true. But do we have justiciable evidence? The charge is so serious, that if there is evidence, it warrants formal proceedings against the chief justice. If any political party has evidence that the chief justice has exercised his discretion to “fix” cases, they should initiate impeachment proceedings. And the judges who went public will have to be material witnesses.

On the other hand, if the charge does not rise to this level of seriousness, or there is no justiciable evidence, then is it right to accuse the chief justice of wrongdoing publicly? The justiciable standard may be too high, but it is the only one that can apply when such a grave accusation is made. Or else you have the grammar of anarchy. It is alarming when legal luminaries from judges to lawyers, now use hearsay to pronounce guilt or innocence. Or the entire discourse has become about inferring motives. Poor Justice Karnan must be wondering why his more direct accusations against judges invited contempt.

There is no half-way house when it comes to guilt or innocence. The judge’s press conference, and the artfully evasive letter, seem to suggest there is. But now that they have gone public, they have to follow through on the seriousness of the charge; otherwise this is just pressure tactics. It is dangerous pressure tactics because one implication will be that any “pro-government” decision on a bench allotted by the chief justice, will now have the imprimatur of doubt over it.

But the question is who will do the adjudication of the chief justice’s guilt? There is now no way of avoiding this question. The second dilemma is this. It is a good thing that everyone talking about institutional reform. Some, like a little more formalisation of the powers of the chief justice, are good things.

But given the nature of the accusation, those reforms are not what is at stake here. What is at stake is: How do you punish an errant chief justice? The Constitution secured the independence of the judiciary by making it nearly impossible to act against judges. The question is: Do you want to lower that protection? On the one hand, the implicit claim is that, as it is, the government is finding it easy to influence the judiciary.

Will giving the government more role in appointing judges or disciplining them weaken or strengthen judicial independence? So the dilemma will be this. The judiciary’s spectacular own-goal will increase calls for new mechanisms of accountability. But will those new mechanisms weaken or strengthen judicial independence? The political thrust of the current crisis and the punitive mood within the judiciary will increase the likelihood of reform that will threaten independence.

Can the judiciary recover? If Dipak Misra, as an act of statesmanship, addresses the fact that he has lost the confidence of the collegium and finds ways to recover it, perhaps. But this is unlikely. Taking charges the logical conclusion will be difficult. If they don’t follow through, then the whole drama becomes a saga of pressure tactics, intrigue and innuendo. The future does not look good. The usual Indian solution will be to sit out the crisis. The only silver lining is that in a year with so many important cases, the judiciary can redeem itself by the cogency of its reasoning and display its integrity.

Do we have justiciable evidence against CJI Dipak Misra?