Look, who is talking about diminishing the authority of the judiciary

Kapil Sibal

There is no procedure under the law except through an impeachment motion to remove an errant judge. When all processes are politicised and the media is held captive with its key players enlisted as spin doctors for the government, then no process will succeed. A key person in the government has said the motion represented politics of revenge. I would like to ask — “revenge against whom”? It is the obduracy of the system to ensure that there is no inquiry that makes the government’s motive political, and not the motive behind the motion. The charges against the Chief Justice of India (CJI) have nothing to do with politics. No person who appreciates the nature of the charges can allege that the motion has been moved for political considerations.
There was no politics of any political party behind the statement of four distinguished judges of the Supreme Court, who were obviously so frustrated with the goings on in Court that they considered it their constitutional duty to address the nation. The minister cannot possibly suggest that the judges had some ulterior motive except to ensure that the independence of the judiciary is preserved. They must have found it extremely uncomfortable to watch this government’s constant interference in judicial processes, which is why they publicly stated that if they did not speak out, future generations would have said they had sold their souls. The fact they went on to say that democracy is in peril suggested that the independence of the judiciary is in peril. Any member of the Cabinet analysing the sentiment behind these statements would understand that this had nothing to do with politics, but represented indignation at the brazen attempt of the government to influence the judiciary for their partisan ends. It is this government that is playing politics with the judiciary.
Now the charges.
First, in the case of Prasad Education Trust, a sitting judge of the high court is being prosecuted and along with him, a retired judge of the Odisha High Court and two others who conspired to bribe the judge. The taped conversations, a portion of the transcripts of which were placed on record with the motion, would make it clear to any reasonable person that the conspiracy was much wider and that if any government is committed to root out corruption from the judiciary, such government would welcome a probe to find out who all were involved in the conspiracy. The fact that this government does not want the probe speaks volumes of the intent behind this position.
Second, the extraordinary step of a Constitution Bench rising at 12 noon, knowing that in another court a matter was mentioned and was listed for hearing, to preempt the hearing.
Third, when the matter was called for hearing before that bench, an order that in the circumstances appears to have been antedated, informed the judge not to deal with the matter. Obviously, what is happening within the judicial system today is unprecedented. Such unsavoury goings on have not happened since our Republic was born. For a minister to brush aside such serious happenings and allege there are political motives behind the motion is, in fact, evidence of the extent to which the political process will go to ensure that the truth doesn’t emerge.
Fourth, that a false affidavit was filed to obtain allotment of land does not need any proof. The fact that the CJI surrendered the plot only in 2012 when elevated to the SC also does not need any further proof. How can a motion which seeks to delve into these matters be called political?
And last, that sensitive cases were sent to particular judges, which was also the refrain of the four judges addressing the press, was surely not the result of any politics by the Opposition. Therefore, the suggestion that the Opposition is playing politics is ex facie laughable. The truth is the government is playing politics to ensure that there is no inquiry that will embarrass the government.
The MPs who have signed the motion know that the motion, even if the charges are proved, may still be lost because the voting will be motivated by politics. One must be cognisant of the fact that there is no other way to deal with an errant judge except through such a motion. If we deny an inquiry, it will send a message to the entire judicial system that no matter what the charges against any judge, this government will save that judge. This is the unprincipled stand of persons who in Parliament have previously made speeches to the effect that the “premise of the utmost impartiality, free from aberrations, under which the institution of judiciary was created, is no longer available”. If the premise of impartiality is no longer available, then this government must explain why it is compromising with alleged misbehaviour.
It is this government that is diminishing the institution of the judiciary. We have seen recommendations blocked. We have seen a previous CJI lament of a “lock out” of the judiciary by refusing to accept recommendations of the collegium. We have seen a previous CJI breakdown, which was evidence of the attitude of this government towards ensuring that judges of their choice are appointed. It is better to stand on principles knowing that a motion may be defeated than play politics knowing the judicial system needs surgical attention. This is a wake-up call for the country.