Consider the following: When a court, be it the Supreme Court or the High Courts, strikes down a law passed by parliament as being unconstitutional or invalid, is the decision assailed as a transgression into the realm of the legislature? Or do we say that the courts have exercised their constitutionally mandated (and inherent) powers of judicial review?
So, when parliamentarians invoke a procedure laid out in the Constitution and elaborated upon in statute – as they have on at least five occasions since independence – how should the government respond? Should they wait for the chairman to perform his role as laid down under Article 124 of the Constitution and the Judges Inquiry Act 1968, like all Governments have before them? Or should they engage in a campaign to malign and question the intentions of those invoking the process?
There is an obvious answer. But then again, we have never had a Government as unsure of Constitutional propriety as the current one.
When the Judicial Mechanism to Address Issues Failed
Let us start with the events of 12 January 2018. A day on which four of the senior-most judges of the Supreme Court, in an unprecedented move, chose to address the people directly. It was, in the words of one of the judges, an extraordinary event. Made more so because it proved two things; one, that there was a grave crisis and two, that the mechanisms to address it had failed.
Two months thereafter, the second senior-most judge wrote a letter to the Chief Justice, reiterating his concerns. it was clear that the matter was far from resolved.
The judges who spoke out will be remembered for having had the courage of their convictions and for having put their careers on the line. The Congress Party, which has always prided itself on having played a vital role in establishing the institutions we cherish today, could do no less.
This was, as our leaders have repeatedly stated, not a frivolous decision. It was after much consideration and study that we decided to take this step. We distilled our case in terms of the strongest grounds available and presented them first to the public.
The ‘Poorly Thought Out’ BJP Attack
The BJP has adopted three arguments to attack this decision and without the slightest doubt, all three are fallacious and poorly thought-out.
1) First Argument: Revenge Politics
The most prominent endorsement of revenge politics comes from our finance minister Arun Jaitley. Public memory is short lived but that doesn’t mean we will forget the events of 2011 where a passionate Mr Jaitely argued convincingly for the need to impeach Justice Soumitra Sen. Other parliamentarians, including those from the Congress, stood with him. No one accused him of mala fide or clandestine personal motives.
Nonetheless, political history aside, the argument of vengeance is factually incorrect. The bulk of the signatures for the petition were collected when Parliament was in session and as the office of the chairman will attest, an appointment was sought a week before the Loya Judgment was ever pronounced.
2) Second Argument: Aim to Intimidate Judiciary
The second argument, that the Congress is raising opposition to intimidate the judiciary, is misleading. The charge raised is against an individual and not against the judiciary as a whole. The very fact that the Congress invoked what happened on 12 January earlier this year demonstrates the regard we have for other members of the judiciary.
The BJP forgets that the judiciary, in its vast wisdom, is able to tell the difference between dissent and disloyalty.
3) Third Argument: Without Numbers, Impeachment Motion Pointless
BJP’s third argument is that since the Congress won’t have the requisite numbers, the entire exercise is pointless. This argument suffers from a lack of understanding as to what the removal process entails.
Voting on the removal of a judge, following an inquiry under the Judges Inquiry Act 1968, is not akin to voting on legislation. Every member must, upon reviewing the report of the committee established under the 1968 Act, decide how to vote as per their own views and principles on the matter.
We have made our decision and now the BJP must make its own. Will it continue to stand in the way of a free and fair inquiry mandated by a statute or will it allow the charges to be examined, now that the requisite number of MP’s from across the political spectrum have called for it? After all, the vice president in his role as the chairman of the Rajya Sabha is supposed to be above party consideration and affiliations. Either option defines their legacy. But only one is constitutionally appropriate.
There is a reason why our Supreme Court has come to acquire the stature and respect it enjoys. It is because in the most difficult of times, it has taken positions that may be entirely displeasing to the government of the day but which, above all else, have upheld the interests of the common Indian.
We owe it to this court and the constitution it serves under, to raise our voice. It would be an act of cowardice not to do so. It is understandable that, to a party like the BJP, this doesn’t make sense.
(The author is an advocate and a national media panelist of the Indian National Congress.)
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