Five Reasons Why CJI Impeachment May Be Questionable But Is Politically Savvy

BloombergQuintOpinion

Politics is an innately volatile and risky enterprise. That’s why politicians like to play safe. When you toss a hot potato, their response is usually verbose and inane.

Just pick up the most recent reaction from Prime Minister Modi, who is perhaps the most consummate politician on Earth today. When confronted with the complicity of Bharatiya Janata Party activists in the Kathua and Unnao rapes, he chose silence for the first few days, hoping the fracas would blow away. But when it did not, he took refuge in moral grandstanding: “Does a rapist have a religion? Should rape be used to score political points? I denounce the violence perpetrated on our mothers and daughters”. Note how he eschewed an explicit condemnation or even mild reference to the K, U, or B(JP) letters of the alphabet. Had Modi done that, he may have won over a morose public, but walked smack into a torrid political blowback from his opponents. So he played safe, which is what 99 percent of the politicians do 99 percent of the time.

Rahul Gandhi’s Disruptive Gamble On CJI’s Impeachment

So it’s a rare celestial event when a politician deliberately gambles on something that has the potential to implode in his face. I would put Rahul Gandhi’s decision to move a high-stakes impeachment motion against Chief Justice Dipak Misra squarely in this category. It was disruptive. It’s double-edged. It could have gone horribly wrong, as was evident from the avalanche of criticism it ignited on Day One.

Congress leaders Ghulam Nabi Azad, Kapil Sibal, CPI’s D Raja and KTS Tulsi during a press conference after opposition parties submitted a notice to the Vice President and Rajya Sabha Chairperson Venkaiah Naidu to initiate impeachment proceedings against Chief Justice of India Dipak Misra, in New Delhi on April 20, 2018. (Photograph: Kamal Singh/PTI)
Congress leaders Ghulam Nabi Azad, Kapil Sibal, CPI’s D Raja and KTS Tulsi during a press conference after opposition parties submitted a notice to the Vice President and Rajya Sabha Chairperson Venkaiah Naidu to initiate impeachment proceedings against Chief Justice of India Dipak Misra, in New Delhi on April 20, 2018. (Photograph: Kamal Singh/PTI)

The most credible and damaging indictment came from the trinity of India’s legal icons (whose public cache’ transcends even incumbent supreme court judges). Ram Jethmalani, known to celebrate maverick moves, came down like a ton of bricks on the motion. Fali Nariman called it a “dangerous precedent. I am deeply pained and hurt. This is very demeaning to the judiciary”. Soli Sorabjee called it an “ill-advised, ill-conceived step”. Within 72 hours, Vice President Naidu rejected the impeachment motion.

For a while, it seemed that Rahul Gandhi had slung a scalding boomerang which could turn around and singe him.

Checkmated, Stymied, And Outsmarted?

But then, something strange happened to reconfigure the boomerang. It became a missile whose initial blast-off heat cooled off, gliding into a controlled trajectory. The narrative switched from castigating the impeachment motion to handling its fallout:

  • How should the Chief Justice respond when the Congress files its petition challenging the Vice President’s rejection? Chorus of legal opinion: “He should effectively recuse himself, and not be seen to be influencing this matter in any way.”
  • Whose bench should the matter be referred to? Fali Nariman: “The matter must go to the bench headed by Justice Ranjan Gogoi, his effective second in command since Justice Chelameswar will retire in June.” i.e., there should not even be a hint of ‘bench fixing’ in this allocation.
  • Since this imbroglio could last beyond Chief Justice Dipak Misra’s retirement in October, should it have a bearing on his successor? Deafening chorus, across legal, journalistic, political and general public: “No, there should be no supersession”. Fali Nariman: “The chief justice would be well advised to recommend his successor in accordance with the Constitutional Convention. Justice Ranjan Gogoi has to be named.”
  • And how would you react if Chief Justice Dipak Misra was given a government job after his retirement? Chorus: “No no no. That would damn both Prime Minister Narendra Modi and Chief Justice Dipak Misra in the court of public opinion.” Fali Nariman: “CJI must not accept a sinecure from this government, under any circumstance.”

See how the burning boomerang has transformed into a navigated missile on a perfect trajectory? Political doomsayers were once fearing that this government would supersede Justice Ranjan Gogoi because he was seen to be ‘inconvenient for the rulers’. But now, under the harsh glare of the ‘post-impeachment notice spotlight’, public opinion has hardened.

Prime Minister Modi will risk political opprobrium if he chooses to still go down the supersession route.

Has he been checkmated, stymied, even out-smarted?

Perhaps the ‘CJI supersession misadventure’ has been effectively neutered. But has the impeachment missile created even more ‘wins’ for Rahul Gandhi and the opposition? Yes, at least four more…

Two: Severe Scrutiny Of CJI Dipak Misra’s Public Record

Earlier, the Prasad Education Trust’s alleged dalliance with Chief Justice Dipak Misra and Justice Narayan Shukla of Allahabad High Court was spoken about in hushed whispers. Now, the Bollywood-like dialogues on the purported CBI tape recordings between Vishvanath Agarawala and Justice IM Qudussi (retired Judge of Orissa High Court) are a matter of parliamentary record.

Other allegations, ranging from a forged Supreme Court administrative order to a false affidavit given in 1999 to usurp 2 acres of agricultural land, have jumped out of the shadowy world of rumours on to accessible, formal records. Understandably then, CJI Dipak Misra will have to deal with the fetters of severe public scrutiny on any action that he takes from here on.

President of India Ram Nath Kovind administers the oath of office to Chief Justice of India Dipak Misra, at Rashtrapati Bhavan, in New Delhi on August 28, 2017. (Photograph: PIB)
President of India Ram Nath Kovind administers the oath of office to Chief Justice of India Dipak Misra, at Rashtrapati Bhavan, in New Delhi on August 28, 2017. (Photograph: PIB)

Three: Unrelenting Focus On Supreme Court Reforms

Once upon a time, the stand-off between the government and the supreme court collegium over the appointment of judges was a bit of remote, esoteric skullduggery. But now it’s a part of everyday discourse. The public knows that the central government has held up Justice KM Joseph’s appointment on a partisan whim. It forced Justice Indu Malhotra’s file to be dusted out from the forgotten shelf. Protest has swelled over the government’s disingenuous ploy to create regional and non-merit quotas in supreme court appointments. It’s an unmitigated victory for this government’s critics.

Lawyers outside the Chief Justice of India’s court in New Delhi, India. (Source: Supreme Court of India Website)
Lawyers outside the Chief Justice of India’s court in New Delhi, India. (Source: Supreme Court of India Website)

Four: Circumstances Of Judge Loya’s Death In Mainstream Media

The Congress’s impeachment motion was filed swiftly after CJI Dipak Misra’s bench dismissed the PILs filed over Judge Loya’s allegedly mysterious death. It was politically easy to connect two and two, forcing the Judge Loya issue out from the pages of The Caravan magazine on to mainstream media. Some of the unexplained, weird circumstances surrounding his death are now part of the daily political talk, fuelling contention and consternation.

Five: Stamping Leadership Over A Key Opposition Cohort

Finally, the impeachment motion was not an isolated Congress manoeuver. To Rahul Gandhi’s credit, he marshalled six major political parties to sign on the petition. These included such heartland titans (and forever Congress detractors) like BSP and SP, besides NCP, CPM, CPI, and IUML. It’s a political coup in sheer arithmetic terms.

These seven parties added up to nearly 33 percent of the popular vote in 2014, more than the 31.34 percent scored by BJP under Modi’s tidal wave.
Congress President Rahul Gandhi speaks to NCP President Sharad Pawar at a dinner gathering of opposition parties, on March 13, 2018. (Photograph: <a href="https://twitter.com/INCIndia">@<b>INCIndia</b></a>)
Congress President Rahul Gandhi speaks to NCP President Sharad Pawar at a dinner gathering of opposition parties, on March 13, 2018. (Photograph: @INCIndia)

If anything, the opposition parties’ strength has grown considerably now, as Modi and BJP have ceded to an incumbency backlash. So the ‘risky’ impeachment motion may have become the catalyst of a potentially lethal adversary to Prime Minister Modi in 2019.

As in life, so in politics, fortune does favour the brave. By going for broke with a hitherto untried impeachment motion against the Chief Justice of the Supreme Court, Rahul Gandhi, Congress, and six major opposition parties have shown unusual political savvy. And sparked a new buzz in the run-up to 2019.

Raghav Bahl is the co-founder and chairman of Quintillion Media, including BloombergQuint. He is the author of two books, viz ‘Superpower?: The Amazing Race Between China’s Hare and India’s Tortoise’, and ‘Super Economies: America, India, China & The Future Of The World’.