Soon after four senior Supreme Court judges called a press conference last month and accused the Chief Justice of India Dipak Misra of assigning important cases on a selective basis, the Congress demanded that the death of judge Brijgopal Harkishan Loya, who was hearing the Sohrabuddin encounter case, be probed by an independent special investigation team.
Ten days later, Communist Party of India (Marxist) General Secretary Sitaram Yechury told media persons that his party was in talks with other opposition leaders to discuss moving an impeachment motion against the Chief Justice in the budget session of Parliament since the issues raised by the four senior judges were yet to be resolved.
On Wednesday, the Congress fielded the party’s top legal experts to reiterate its demand that judge Loya’s death be investigated by an independent special investigative team, failing which the party would go to every village to tell the people about how justice was being dispensed in the country.
Former minister Kapil Sibal, flanked by colleague Salman Khursheed and head of the party’s legal department Vivek Tankha, alleged that information gathered from whistleblowers and activists revealed that judge Loya was under pressure to pass an order in favour of an accused and that he had also received a draft order for him to sign by October 2014. Pointing to the contradictions in the post mortem report and other hospital documents as well as the police records pertaining to judge Loya’s death, Sibal underlined that the mystery could only be resolved if it is entrusted to an independent investigative team which should not comprise of any officers from the Central Bureau of Investigation or the National Investigation Agency.
The case pertaining to Loya’s death is currently being heard by a bench headed by Chief Justice Dipak Misra. Loya was hearing the Sohrabuddin Sheikh fake encounter case in which Bharatiya Janata Party president Amit Shah was one of the accused.
The real focus
The sequence of developments over the past few weeks suggests that the real intention of the opposition is to build pressure on the Chief Justice. While the CPI(M) has proposed his impeachment, the Congress is planning to up the ante against him in a calibrated manner. Party leaders said they would be placing fresh material in the public domain in the coming days.
While the opposition has an obvious interest in the Loya case, the party is also aware that the chief justice could play a crucial role in the other politically sensitive important cases being heard by him, which includes the Ram Janambhoomi-Babri Masjid title dispute in Ayodhya. The final hearing of the case is to begin on February 8.
Senior party leaders, involved in drawing up the party strategy on legal matters, admitted privately that while the Loya and Aadhar cases are important, they are chiefly concerned about the Babri Masjid case.
Chief Justice Misra, who is to retire this October, is said to be keen on delivering a verdict in this far-reaching case before he steps down. The Congress and other opposition parties are convinced that the judgement delivered by the bench headed by the chief justice is likely to pave the way for the construction of the Ram temple at the disputed site in Ayodhya. This could prove to be politically disastrous for the Congress as the BJP will want to use the emotive mandir issue to fight the growing disenchantment with the Modi government. In such a situation, the Congress will first feel the heat in the year-end assembly polls in Madhya Pradesh, Rajasthan and Chhattisgarh where it is currently confident of faring well against the BJP governments.
“We basically want to pressure the chief justice to become more independent. We will back off if we believe he is acting in an impartial manner,” remarked a senior Congress leader.
Threat of impeachment
In fact, this is the main argument being put forth to move an impeachment motion against the Chief Justice in Parliament. Though Congress legal experts have advised party president Rahul Gandhi against supporting such a move on the plea that they do not have the numbers in Parliament to see it through, it is being argued that the threat of an impeachment motion will deter the Chief Justice from being partial in the politically-important cases he is handling.
Even in the Wednesday press conference, when a specific question was asked, Kapil Sibal refused to give a categorical answer and said that while the Left parties have made their position very clear and have spoken to the Congress about it, the party is still talking to others and is yet to take a view on the subject.
“It will become difficult for the Chief Justice to hear important cases if an impeachment motion is pending against him,” explained a senior Congress leader. “The idea is to make him a lame-duck chief justice,” he added.
Party insiders say that while they cannot openly put pressure on the Ram temple case, they can go to town on the Loya case to make things uncomfortable for the chief justice. Their hope is that he will decide to go slow on the Ramjanambhoomi-Babri Masjid case but so far he has shown no inclination to delay the matter. Much heat was generated when the case was heard last December. Sibal suggested in court that the the hearing be postponed till after the 2019 Lok Sabha elections in view of the political and social ramifications of the case. Harish Salve and CS Vaidyanathan, representing the Hindu organisations, had countered this plea, saying that this matter be treated like any other and should be heard soon as it has been pending since 2010. The court had rejected Sibal’s plea.
The case was then heard in the midst of the high-decibel Gujarat assembly polls. Sibal’s plea for a postponement was seized upon by the BJP to paint the Congress as anti-Hindu on the ground that it did not favour the construction of a Ram Temple. Pushed on the back foot, the Congress had a lot of explaining to do during the election campaign. It, therefore, does not want a repeat of the same and would prefer that these issues do not surface in the forthcoming polls, leaving the Congress free to focus on the deficiencies of the BJP governments in the poll-bound states.