In the current month of April, extremely exciting events have been occurring in quick successions with regard to Odisha! Justice Dipak Misra, who is the third CJI from Odisha, is facing rough weather. The charges levelled against him are all on the home front. Fellow judges of the collegium staged an unprecedented rebellion by going public and holding a Press meet to tell the world that ‘all is not well’ at the apex court as the CJI was lopsided in his administrative handling of matters including allocation of cases. There were a few more charges levelled against him including messing up the ‘judge loya death matter’ with the sole intention of hushing it up to favour the existing establishment. The senior-most collegium judges created history but not to much avail as the public probably wanted more solid proof that the CJI was erring with malafide purposes. A minority number of Rajya Sabha members petitioned the Vice-President to consider an impeachment move to remove the CJI for misbehaviour on as many as five counts. A few among the eminent RS members turned down the motion believing it’s rash and unfounded, including the former Prime Minister Manmohan Singh. Former jurist-Minister Salman Khurshid considered the move meaningless.
Article 124 (4) of the Constitution lays down the procedure for removal of a Judge of Supreme Court which is applicable to Chief Justice as well. Once appointed, the Chief Justice remains in office until the age of 65 years whichever is earlier. He can be removed only through a process of impeachment by Parliament as follows:
A SC Judge shall not be removed from his office except by an order of the President passed after an address by each House of Parliament supported by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present and voting has been presented to the President in the same session for such removal on the ground of proved misbehaviour or incapacity.
The Indian judiciary has been hitting media headlines for quite some time. First, they caught the fancy of the surrounding world for embarking upon what is wrongly or rightly called ‘judicial activism’, meaning fast and responsive suomotu cognizance taking of contentious issues concerning public interest of any kind. The only critical issue that may be considered debatable is the fact of choosing the CJI on the basis of mere seniority. This arrangement could be the only flawed practice as not necessarily age alone has ever been proved to be directly proportional to skill, wit or wisdom levels.
Judiciary interprets law. If the lawmaking process or the laws framed are found faulty and violative of the ‘doctrine of basic structure’, the judiciary can strike it down right away and its ruling is binding on all institutions.
Incidentally, exactly 45 years ago, on April 24, 1973, a landmark judgment by the apex court had changed the course of Indian judicial history. The matter related to one Kerala-based a religious mutt’s pontiff, Kesavananda Bharati, who had petitioned the Supreme Court for relief in a property-related case after being frustrated at the High Court. Kesavananda found his fundamental rights inherited in Article 26 were violated by the 24th, 25th and 29th Constitutional Amendment Act and the land Reform Act, 1963 and land Reform (Amendment) Act, 1969 & 1971 of Kerala Government and the lands of his mutt were being acquired by the Government and he did not get any relief from the High Court. He knocked at the doors of the Supreme Court represented through one of the greatest jurists of the times Nanabhoy Palkhivala. A majority of the 13-judge Bench delivered the landmark verdict on April 24, 1973. The Bench headed by CJI SM Sikri and also consisting of Justices JM Shelat, KS Hegde, AN Grover, P Jaganmohan Reddy, AK Mukherjea and HR Khanna ruled in favour of the non-negotiable force of the basic structure of the Constitution, particularly to protect the Fundamental Rights. Hence, the Parliament cannot amend the inviolable basic structure under any circumstances. “Basic structure” was interpreted to include the supremacy of the Constitution, the rule of law, independence of the judiciary, doctrine of separation of powers, federalism, secularism, sovereign democratic republic, the parliamentary system of government, the principle of free and fair elections, welfare state, et cetera. The majority opinion was delivered by CJI Sikri supported by Justices KS Hegde, AK Mukherjea, JM Shelat, AN Grover, P Jaganmohan Reddy and HR Khanna. Justices AN Ray, DG Palekar, KK Mathew, MH Beg, SN Dwivedi and YV Chandrachud had dissented.
Indira Gandhi was a powerful, despotic Prime Minister then, having been in power since January 24, 1966. Her Government was shaken up by the Kesavananda verdict. She struck back immediately with a powerful blow to the independence of judiciary. Justice AN Ray, who had dissented was made the 14th CJI on April 26, 1973, superseding Justices Shelat, Grover and Hegde, who were on the side of the majority. Political machinations to overturn the verdict followed. Attorney General Niren De moved the Supreme Court without even filing a review petition. Incredibly, CJI Ray, as the Master of the Roster, arbitrarily constituted a 13-judge Bench to review the verdict. Constitution of a Bench for review of the verdict without a review petition having been filed was unprecedented. As the review hearing commenced, there was speculation that Justice Ray’s dissenting opinion of 1973 would be converted into CJI Ray’s majority opinion in 1975. Earlier on August 10, 1975, the 39th Amendment introduced Article 329A into the Constitution, placing the elections of the Prime Minister and the lok Sabha Speaker beyond judicial review. The Amendment, passed during the Emergency validated Indira Gandhi’s election after she was unseated on June 12, 1975 by the Allahabad High Court for indulging in corrupt electoral practices. After two days of impassioned arguments, on November 12, 1975, CJI Ray abruptly dissolved the 13-judge Bench. He had been forced to yield under immense peer pressure, and the institutional integrity of the Supreme Court was restored. But by then, CJI Ray’s reputation was damaged beyond repair.
Even as Indira Gandhi’s appeal was pending in the Supreme Court, Parliament had validated her election by amending the Constitution. This amounted to Parliament performing a judicial function in violation of the doctrine of separation of powers. The Kesavananda verdict had been defied by an authoritarian regime. All the same, Article 329A was repealed by the 44th Amendment in 1979. The SC struck down Articles 329A(4) and 329A(5) as being violative of the basic structure of the Constitution. The flaw was corrected by the Supreme Court much later in the Indira Gandhi vs Raj Narain case. Similarly, on April 28, 1976, in ‘ADM Jabalpur vs S S Shukla’ case, a Constitution Bench of the SC ruled that fundamental rights would remain suspended during Emergency. CJI Ray and Justices Beg, Chandrachud and PN Bhagwati were part of the majority. Justice HR Khanna, the lone courageous dissenter, was superseded by Justice Beg to become the 15th CJI in 1977. All the four judges who wrote perhaps the worst judgment in India’s constitutional history became CJIs, Justices Ray and Beg by superseding their seniors.
On October 16, 2015, in the ‘National Judicial Appointments Commission’ case, the Supreme Court struck down the 99th Amendment (by which the NJAC was set up) as being violative of the independence of the judiciary. The constitution of NJAC was obviously intended to cripple the judiciary. The law Minister, representing the country’s biggest litigant, the Government, was a critical part of the process to select and appoint judges. Again, ‘Kesavananda’ came to the rescue of the judiciary. However, even thirty months after the NJAC verdict, the Government continues to defy the Supreme Court’s directive to “finalise the existing Memorandum of Procedure by supplementing it in consultation with the CJI, who will take a decision based on a unanimous view of the collegium comprising the four senior-most puisne Judges of the SC.
It is evident by now that Justice Dipak Misra, with no big enough threat in sight, shall relaxingly complete his full stint as the 45th CJI.
(The writer is a core member of Transparency International, Odisha)