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Mainstream, VOL LVI No 19 New Delhi April 28, 2018

The Controversy

Saturday 28 April 2018, by Badri Raina

The honourable Chairman of the Rajya Sabha has ab initio rejected the motion for removal of the Chief Justice of India, signed by sixtyfour Members of Parliament.

One Member, namely, the reputed Senior Advocate, Kapil Sibal, has contended that in acting as a quasi-judicial persona, the honou-rable Chairman has engaged in an “illegal” determination on the petition. Mr Sibal’s argument is that the grounds for rejection do not stand the test of the provisions of Article 124, insofar as the determination whether or not the charges levelled constitute “proven misbehaviour” belongs to the Enquiry Committee and not to the Chairman of the Rajya Sabha. He makes the point that the jurisdiction of the Chairman is restricted only to verifying that the requisite number of Members have signed the petition, that the signatures are authentic, and that the substance of the motion relates to the provision of “misbehaviour” as set in Article 124.

It becomes apparent each day that opinion on the controversy is sharply divided. If there are many who endorse the Chairman’s action, many others think it “malafide” and have publicly said so.

The petitioners are very likely preparing to take the matter to the Supreme Court. What will be of consuming interest is how the matter is allocated and who allocates the matter, since, clearly, the honourable Chief Justice cannot, being the subject of the petition and, equally likely, the four senior Judges of the Collegium who had held a press conference on issues related to the functioning of the Court, may also not deal with the matter of the pettition.

Clearly, the highest court could be on the threshold of a new structural precedent.

Be that as it may, the controversy carries two disquieting features from two disparate perspectives. One was voiced lucidly on a television talk show the other night by a lady in the audience; she asked, now that the Chairman has denied the motion, how will the citizen ever know the truth or otherwise of the charges made by the petitioners against the Chief Justice? The question underscores the ambiguity in which the system thus leaves the common citizen with respect to the credibility of the judicial system.

But equally importantly, it may be argued that the abrupt and hasty foreclosure of the motion, paradoxically, has the effect of denying the impugned subject the opportunity to clear his name of the charges made, besides suggesting that the government of the day seems, for  reasons best known to the powers-that-be, to protect the honourable Chief Justice rather than furnish him the laid-out forum decisively to repudiate and prove malafide the charges levelled—a consequence that would restore the standing of the highest court as well as the faith of the common citizen both in the integrity of the numero uno on the Bench and of the consltitutional systems in place to deal with such matters, without any suggestion of deflection.

This is indeed a momentously testing time for the constitutional arrangements of the Republic, and every patriotic citizen must hope that those in charge of the various aspects of that arrangement will rise to the occasion and show to the world that India’s Constitutional Democracy has self-correcting resources that can keep it from being shamed.

The author, who taught English literature at the University of Delhi for over four decades and is now retired, is a prominent writer and poet. A well-known commentator on politics, culture and society, he wrote the much acclaimed Dickens and the Dialectic of Growth. His book, The Underside of Things—India and the World: A Citizen’s Miscellany, 2006-2011, came out in August 2012. Thereafter he wrote two more books, Idea of India Hard to Beat: Republic Resilient and Kashmir: A Noble Tryst in Tatters.

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