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Mainstream, VOL LVI No 24 New Delhi June 2, 2018


Saturday 2 June 2018

by Sardar Amjad Ali

I hope there may not be any noble soul to contradict, if I say the impeachment of Lord Warren Hastings before the British Parliament, beginning on February 18, 1788, was one of the most sensational and eventful trials, with the members of the House of Commons on the right and the Law Lords of the House of Lords on the left, ending after a period of seven years, though as a “failed move”.

The most celebrated and powerful speakers like Edmund Burke and Sheridan had participated in that famous trial.

On the process to move a notice of impeachment of the present Chief Justice of India, Shri Dipak Misra, by more than the required number of members of the Rajya Sabha, the House of the Elders of Indian Parliament, may we recall what one of the most brilliant parliamentarians of the world, Lord Edmund Burke, speaking in favour of the motion of impeachment and in support of the charges of misconduct of Lord Warren Hastings, had said: “Law and arbitrary power are in eternal enmity.”

“This arbitrary power is not to be had by conquest. Nor any sovereign can have it by successions, for no man can succeed to Fraud, rapine and violence. Those who give and those who receive arbitrary power, are equal criminals”.

In a sense, the CJI is “Sovereign” in the judicial hierarchy of India. He is not only the “Paterfamilias” of the judicial system, but an “institution” within an institution called the Indian Judiciary. But the question crops up whether a Judge is endowed with a power beyond the statute or judicial propriety or the rational tests of transparency in application of this power as a Judge either in Judicial or even in exercise of his administrative power as a Judge of the system endowed on him, nonetheless than a Judge.

By all means the CJI is repository of not only the judicial conscience and wisdom of the highest degree but also the most noble-hearted, tolerant and polite human species together with the most principled infallible and ideal human virtues.

CJI Misra was elevated as 45th Chief Justice of India on and from August 28, 2017 and will continue till October 2, 2018.

His heredity is of course worth mentioning. Born in a politically enlightened family of legislators and of legal luminaries, Justice Misra had made his marks not only when he was in the Bar but in the Bench too. A hardworking, well-read man as he is, he was highly appreciated in the Judicial fraternity as a liberal, relief-oriented and pragramatic personality. As a Chief Justice of the Delhi High Court (I had the privilege to appear in one case with Prashant Bhusan’s younger brother before Justice Misra) Justice Misra was liked by many and disliked by not a few too as an impatient arbiter of complicated lis.

But the Delhi High Court was too near to the Apex Court of India. Elevated as an additional Judge in 1996 to the Orissa High Court, he opted for a transfer to the Madhya Pradesh High Court where he remained till 2009. With the blessings of the then Chief Justice S.H. Kapadia, he was transferred to the Delhi High Court and within a period of two years to the Apex Court where He is now in the centre of a controversy as the Chief Justice of India.

Eulogies have been showered on him aplenty as a judge beyond superstition and traditional religious bias as were very lucidly ventilated in his Lordship’s verdict on the “Jalli Kattu Case” of animal sacrifice or in awarding death penalty to rapists of the Nirbhaya case.

The rise of Justice Misra from the beginning as an Additional Judge of the Orissa High Court to Madhya Pradesh, to Patna, to Delhi and ultimately to the Apex Court was during the Congress regime, both in the States as well as at the Centre. Even if it is seen as a coincidence, it at least reflects a “crying truth” that the Congress did not stand in the way of recognising his Lordship’s talent, not because of his Lordship’s relationship with his “uncle” Ranganath Misra, the former Chief Justice of India, neither taking cognisance of his elder uncle Lokenath Misra’s association with the Congress Party’s most rabid political opponent, Swatantra Party, later on the Janata Party’s (a faction of the Jana Sangh) MP in Lok Sabha and Rajya Sabha and during Vajpayee’s regime, a Governor of Assam and Nagaland.

A strange coincidence it is that talented Warren Hastings, beginning his carrier as an East India Company’s clerk, was endowed with the highest prestige as a de facto Governor General of India from 1773 to 1785, from the first Governor of the Presidency of Fort William.

A talented Dipak Misra was rightly honoured having been elevated as the Paterfamilias of the Judicial Hierarchy of India, the Supreme Court and of the Constitutional Court of Independent India.

During His stewardship as the Governor General of British India Hastings had, knowingly or unknowingly, committed crimes of misdemea-nours, incompatible with British dignity, by using the Company’s troops as mercenaries against the innocent Rohillas and perpetrating unfair persecution against the Begums of Oudh to part with their treasures, taking bribes from Munni Begum, Nand Kumar being hanged with the help of the Chief Justice of the Supreme Court, although showing his skill that a British Empire with a strong base can be established in a far distant territory away from their home and inhabited by a populace of diverse race, communities, religiosity and cultures.

As Chief Justice, Justice Misra, notwithstanding his achievements in awarding pragmatic judicial pronouncements compelling the police to unload the FIRs lodged with them within 24 hours facilitating the accused persons to take appropriate legal steps for their personal liberty or the necessity of need-based reservation in service, introduction of the system of video conferencing with poor prisoners serving jail term and advocates serving free legal aid and such other reformatory measures through the National Legal Services, his pedantic and high brow attitude towards senior Advocates like Rajeev Dhawan, U.U. Lalit, Prashant Bhusan or the holding of an early morning bench at 2 am in Yakub Menon’s case to dismissing his petition for keeping the execution order stayed with Menon executed two hours after his verdict, compelling movie viewers to stand up and show their nationalism when National Anthem is played in public theatres and subsequently withdrawing the ruling as a result of public criticism, were apparent controversies that were percolating in the public mind as the filter behind his eminence.

Those apart, some very sensitive issues like acquisition of a government land while he was a practising Advocate at the Cuttack High Court by submitting a false affidavit about his eligibility to get the land in question and afterwards return the same while he is the Chief Justice, the introduction of the system of roster for assignment of case to different benches only after were charges publicly levelled by his Senior Colleagues about allocating the Bench of his preference for adjudication of politically sensitive cases. He, as the Master of Roster, without giving due recognition to the wisdom of Senior Judges of the Apex Court, together with other charges of alleged irregularities indulged in by him as the Chief Justice, as inscribed in the notice of motion for presenting an address before the President of India for his removal from the Supreme Court, in the Rajya Sabha, did shake the confidence of the people upon his integrity, transparency, uprightness and lack of Judicial conscience.

At least two of the five charges appear to have been admitted, namely, regarding the land deal and assignment of cases as the Master of Roster to selective Judges.

The rejection of the motion by the Chairman of Rajya Sabha cannot be sustained on legal scrutiny.

Articles 124 (4) and (5) read with section 3 of the Judges Inquiry Act, 68 emphatically mandates that a Judge may be removed upon proved misdeamour by an Address to be made to the President of India by a required number of members of either Lok Sabha or Rajya Sabha, presented before the designated House of Parliament and passed in the prescribed manner.

The Chairman, in my opinion, is not competent to judge the veracity of the charges other than scrutinising the validity/invalidity of the notice of motion, for acceptance of the motion for discussion in the House or rejection of the same over which he presides. When constitutionally a power is vested in the Houses of the Parliament, the Chairman of the Rajya Sabha or the Speaker of the Lok Sabha cannot usurp the power of the Houses by applying a subjective test of his alone and arrive at a judgment that the notice of motion, “is neither tenable nor admissible”. The Chairman took the charges, the foundation of the motion, for giving his verdict as baseless for the reason that those do not certainly constitute proof beyond “reasonable doubt”. Apart from the question of his competence to Judge the correctness of the charges, the Chairman, a Member, a Pracharak, a Minister, a former President of the BJP and Chairman of the Rajya Sabha as a BJP candidate, could not but for oblique purpose and extraneous consideration see through the facts of surrender of the land for which the CJI was charged and the introduction of the roster system of allocation of cases after publicly raised charges by his four seniormost colleagues. Would it not amount to admission of the charges according to law?

Did the Chairman consider that Justice Soumitra Sen of the Calcutta High Court was impeached for a charge that he abused his power of transferring money into his own account which, as a receiver he was entrusted with while at the bar, but refunded the same while he was a judge. Justice Sen did resign. He was also impeached in the Rajya Sabha as Jistice Mitra was sought to be.

Coming to the saga of Warren Hastings vis-a-vis Justice Misra and Edmund Burke’s revelation, it can be said, in history we have seen many legendary personalities with enormous power, had, either deliberately or unwittingly, acted in a manner which being arbitrary exposure of such a person’s zeal to articulate his superiority through a process as unique, that undermines public perception and a dormant sense of self-publicity, resulting thereby a grievous injury to innocent faith, trust and good conscience of common people.

The motion to make an Address before the President for removal of the CJI through a “failed attempt” as was in the case of Hastings, the popular trust and faith upon the judicial system has been gradually receding—is not a perception of the writer alone but the Hon’ble Judges of the Apex Court and some High Court have also lined up in indicating the tide.

To curbe the malady, let us remember what the Supreme Court in the case of the Karnataka High Court vs Jai Chaitany Dasa 2015 (2) KCCR 1809 said:

“A discourteous Judge is like a ill-tuned instrument in the seething of a court room. It is questionably true that courtesy breeds courtesy and just as charity had to begin at home, courtesy must begin with the Judges. The bad behavior of a Judge has a rippling effect on the Judiciary as a whole. When the edifice of Judiciary is built heavily on the public confidence and respect, the damage by an obstinate Judge would rip the entire judicial structure built in the constitution.”

Sardar Amjad Ali is a former Congress Member of Parliament, of both the Lok Sabha and Rajya Sabha.

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