Will the constitutional and judicial crisis that began with a bang end with a confusing whimper? As of this week it seems quite likely. Justice Jasti Chelameshwar, the judge seen as leading the public questioning of Chief Justice of India Dipak Misra’s conduct, will see his last day as a Supreme Court judge in the coming week. And now the Congress has quietly decided that it has done as much as it could on the impeachment front, and will not be pursuing that charge against the chief justice any further.
This is not to say that any of the questions that were raised by Chelameshwar and three other senior Supreme Court judges in an unprecedented press conference in January were resolved. In fact, it is the exact opposite. It seems likely that most of those concerns will go unaddressed. Of course, until Misra demits office in October there is always the potential for drama – and the question of who will succeed him as chief justice adds even more intrigue – but in the interim, it seems as if little has been achieved by those who sought to question the actions of the most controversial chief justice in years.
Some of the judicial wrangling will continue next week, when the collegium decides whether it wants to again insist on nominating KM Joseph for elevation to the Supreme Court. But as the focus shifts to Karnataka, it is worth asking questions about what should have been one of the most carefully thought through political gambits in recent times: What did the Congress, and it Opposition allies, achieve by pursuing impeachment against Chief Justice Misra?
The grounds to question Misra’s conduct were certainly on display. His actions in the Medical Council of India bribery case, in which some of his own orders were under question, was ostensibly the reason for the senior Supreme Court judges to speak out in public, an event that in itself was unusual enough for political parties to also jump into the fray. Other bits and bobs have also turned up, including the suicide note of former Arunachal Pradesh Chief Minister Kalikho Pul, all of which amount to material that might necessitate a more thorough inquiry into judicial conduct.
But instead of immediately backing up the four judges who went public, the Congress and other Opposition parties dithered. The Congress itself seemed to broadly break down into two camps:
- Those who believed that impeachment would push back against the pressure that the government seemed to be putting on the judiciary, in cases from the Ayodhya Babri Masjid matter to the Aadhaar hearings to the death of Judge Brijgopal Loya, as well as act as a check on the actions of Chief Justice Misra.
- Those who believed that the impeachment would not achieve much tactically, since the Congress and the Opposition did not have the numbers to see it through, and would also be a bad strategy since the Bharatiya Janata Party could then portray the Congress as anti-judiciary.
At first it seemed as if the anti-impeachment group was winning out, even as the former group led by lawyer-Member of Parliament Kapil Sibal continued making their case. Then, a day after the Supreme Court decided to dismiss the petitions seeking an inquiry into the death of Special Judge Loya – who had been hearing the Sohrabuddin Sheikh encounter case in which BJP President Amit Shah was accused, when he died – Sibal and other leaders went public about an impeachment notice that had been moved in the Rajay Sabha.
Crucially it was Sibal, and not Congress President Rahul Gandhi, who spoke at the press conference announcing the very first impeachment notice against a chief justice of India. Moreover, some of the party’s top leaders, including former prime minister Manmohan Singh and top lawyer-MP P Chidambaram, did not sign the notice. Sibal gave explanations for both, but it was clear that the move had not been embraced fully by everyone.
A summary response from Rajya Sabha Chairman Venkaiah Naidu and a Supreme Court constitution bench that refused to tell Sibal who had constituted it actually gave those seeking impeachment more fodder to proceed with. But, once the bench refused to say if the chief justice had constituted the bench to look into an impeachment motion against himself, Sibal abruptly withdrew the petition.
Over the last few days, multiple reports have indicated that the Congress is done with its impeachment efforts. Abhishek Manu Singhvi, believed to be one of the main leaders in the anti-impeachment camp, even tweeted about it.
So what was achieved?
Shekhar Gupta, editor of The Print, pointed out how the Congress approach to treating the matter as a legal one, and not a political one, was a major blunder, since it did not prepare public opinion or even its own organisation to fight this unprecedented battle. Writing before the Congress decided it was done with impeachment, he asked, “has the party which boasts of India’s most experienced politicians sleep-walked itself, and the country, into an unprecedented institutional crisis?”
Earlier, Pranab Dhal Samanta of the Economic Times explained the thinking behind this risky step. “The Congress hierarchy clearly has decided that while it tries to get its act together to fight the BJP electorally, it must not cede space within institutions,” he wrote. “It’s a high-risk strategy for the Congress because the gameplan is built around the assumption that by digging its heels in, the party will strengthen the hands of many more who want to step out of the shadows. But it could well do the opposite, which is push away the fence-sitters because they don’t want to appear politically partisan, particularly now that the move has got linked with the order in the Justice Loya case.”
In the event, as with the current Congress, both of these seem to have turned out to be the case, but to limited extent. The party leadership was clearly not entirely in favour of the impeachment effort and so it seems it will now die a quiet death, having made some headlines in between. It is unlikely the anti-judiciary charge will affect the party too much. In the polarised climate that the BJP has created, picking sides – even within the judiciary – suddenly seems a lot less unusual.
But has it provided a platform for more to speak out about the meddling in institutions? The move may have empowered Justice Chelameshwar to clearly lay out what he sees as the next potential battle: Whether Justice Ranjan Gogoi, who was one of the four that spoke out against Chief Justice Misra, will be made the next Chief Justice as seniority would dictate. But the move also prompted lots of condemnation from top legal minds, who would otherwise be progressive voices against majoritarianism and government meddling. And it also exposed a rift in the Opposition, with some parties coming out against the tactic altogether.
Within the judiciary of course there are many more battles to be fought, but the impeachment effort has not tilted those fights any which way. And the relentless focus on Modi versus everyone else leaves little space for other connected, but not exactly analogous battles, like the one about how the collegium operates.
The most surprising thing, then, might be that the unprecedented move to file an impeachment petition against the Chief Justice of India for the first time ever is likely to end up having been a middling effort with limited impact, both on actual events as well as within the public consciousness.