In the higher judicial system, very rarely has an occasion come when two Chief Justices of India have had to remind the prime minister of something.
Alas, two consecutive CJIs – Justice Dipak Misra and Justice Ranjan Gogoi (now a Rajya Sabha member, after having been nominated by the president) – had to remind the Prime Minister’s Office of the allegations against a senior judge of the Allahabad high court, Justice S.N. Shukla.
Specifically, they have had to remind the PMO that the allegations were serious and warranted initiation of proceedings for his removal.
Unfortunately, the judge retired on July 17, 2020, without the Union government having taken any action for his impeachment.
In July 2019, it was reported that the then CJI Ranjan Gogoi, had, for the first time in history, given permission to the CBI to lodge an FIR against a sitting high court judge. That too, under the Prevention of Corruption Act, for his alleged involvement in the medical college scam.
Even before this, a committee comprising Justice Indira Banerjee, then Chief Justice of the Madras high court and now a Supreme Court judge, Justice S.K. Agnihotri, then Chief Justice of Sikkim high court, and Justice P.K. Jaiswal, judge of the Madhya Pradesh high court, had submitted a report on Justice Shukla dated January 20, 2018. Their report concluded that “the aberrations complained of are serious enough to call for initiation of proceedings for his removal (as a judge)”.
Thus the process required for the initiation of impeachment proceedings stood complete as long ago as January, 2018. Justice Dipak Misra was CJI at the time.
In December 2019, the CBI even raided the judge. However, Justice Shukla finally retired on July 17, 2020, having not been assigned any judicial work (under orders of the CJI) for nearly two and a half years. For these two and a half years, the expense of the security and maintenance of the judge and his immediate family has been borne by the public exchequer.
Whenever any constitutional crisis has emerged in the executive function or parliamentary process, the parties concerned expect the judiciary to take up the matter on an urgent basis and the judiciary has always done so on priority, thereby discharging its constitutional responsibility.
The previous CJI’s last reminder to the prime minister, almost a year ago, is of similar nature. It requested him to take the process further and discharge his responsibility on a priority basis. But his plea fell on deaf ears.
After Jawaharlal Nehru, Narendra Modi is the second prime minister of the country who has been able to retain power for a second term with a full majority in the Lok Sabha, free of the pressures and demands that coalition partners bring.
This mandate should have been used to uphold constitutional principles, by acting in a uniform and consistent manner and not arbitrarily, as the government has done in the cases of appointment of judges and chief justices of high courts.
When Justice K.M. Joseph’s appointment to the Supreme Court was in issue, it was delayed by the Union government for a long time, under the pretext of his all-India seniority of high court judges.
On the other hand, we witnessed a subsequent appointment where similar issues were not raised by the same government and the process was completed in an incredibly short period time. Similarly, for high court appointments, despite the Supreme Court reiterating many appointments for the second time, contrary to the established guidelines in the Second and Third Judges’ cases of the apex court, the same were kept pending, or returned.
In the case of Justice Shukla’s impeachment, the government did not move ahead despite the requests of two consecutive CJIs.
In the Indian constitutional set-up, the judiciary can be as independent as it chooses to be and in that exercise of ensuring independence, litigant, citizen and the government all shall have to depend upon and trust the wisdom of the judiciary itself. It can keep external influences emanating from government functionaries as far as it wants.
However, the process of impeachment is not within the ambit of the judiciary. Hence, the concerned institution – parliament – should have undertaken that exercise expeditiously, in a process led by the Centre. However, the government has failed the test of objectivity demanded by the Supreme Court in this regard.
In the past, under similar circumstances, Justices P.D. Dinakaran and Soumitra Sen resigned only when their impeachment motions were put into action. In this case, once Justice Shukla refused to resign, despite the inquiry committee report, the executive should have immediately brought about an impeachment motion. This may have been sufficient cause for the indicted judge to finally resign.
In various judicial pronouncements, it has been repeatedly stated that independence of the judiciary is the sine qua non of democracy.
Justice Lokur reiterated in the NJAC judgment in 2015 that, “Basic concepts like democracy, Rule of Law, independence of judiciary all are constituents of basic structure of our constitution.”
Hence, the system cannot keep experimenting with these very basic features of our constitution.
Here, the government appears to have successfully experimented with the credibility and dignity of the judiciary. Just as a delay in the appointment of judges has an adverse effect on judicial independence and the rule of law, the government’s inaction in the removal of tainted judges have exactly the same effect.
M.R. Shamshad is an Advocate-on-Record at the Supreme Court of India.