When The Wire used the word ‘war’ for its headline on the story about Andhra Pradesh chief minister Y.S. Jagan Mohan Reddy’s unprecedented letter to Chief Justice of India S.A. Bobde, I initially wondered about its appropriateness. But after speaking to my sources, I am now convinced ‘war’ is an understatement and that the correct word may perhaps be ‘gang war’ – one which has the potential to sully the image of India’s Supreme Court for a long time to come.
I am not going to identify the gangs involved or discuss the merits of the specific allegations Jagan has levelled in his letter against Supreme Court judge Justice N.V. Ramana and a number of judges of the Andhra Pradesh high court. The purpose of this article, instead, is to ask what happens next.
The first question that comes to mind is that assuming his allegations are valid, what does Jagan want the CJI to do? He concludes his letter thus:
“In my respectful view, the subject matter may be looked into by your esteemed goodselves to consider initiating such steps as may considered (sic) fit and proper, to ensure that the State judiciary’s neutrality is maintained. Further material if any, corroborative of the above contents and the enclosed annexures, shall be made available by me to your esteemed institution to substantiate the above.”
If Jagan is so sure about the veracity of his allegations, it is inexplicable why his letter to the CJI does not request him to initiate an in-house inquiry against the judges whom he named in the letter. Perhaps he meant to imply such a course of action but having gone the whole hog in his allegations, why the coyness about what he expects the CJI to do?
From in-house inquiry to impeachment
In any case, if the in-house inquiry finds the judges prima facie guilty, what next? The CJI, as the administrative head, may have to withdraw judicial work from them, and recommend to the government that they be removed from office under the Judges Inquiry Act. The role of the in-house committee, therefore, is very limited. And if the in-house committee gives a clean chit to the judges, what will Jagan do?
For parliament to initiate the process of removal of a judge, 100 members of the Lok Sabha or 50 members of the Rajya Sabha have to first give a notice of a motion to the speaker of the Lok Sabha or the chairman of the Rajya Sabha respectively. The speaker or the chairman may either admit the motion or refuse to admit the same, as Venkaiah Naidu did, when Kapil Sibal moved a motion to impeach CJI Dipak Misra a few years ago.
If the motion is admitted, the speaker or the chairman shall keep the motion pending and constitute a three-member inquiry committee comprising a judge of the Supreme Court, a chief justice of the high court, and a distinguished jurist. If the committee finds the judge guilty, then the houses of parliament are to consider the committee’s report, and the motion. The removal of the judge would then depend on the adoption of the motion by parliament. If the committee does not find the judge guilty, then parliament cannot remove the judge, as the pending motion would become infructuous.
Question mark over who will succeed CJI Bobde
It is obvious that Jagan’s goal in making the allegations against the judges cannot be anything except their removal from office. But to achieve that purpose, he has to rally support among MPs to get the requisite number among them to sign the notice of motion for their removal so as to kickstart the process. The procedure under the Judges Inquiry Act would then have to be completed well before April 23, 2021, when the tenure of the current CJI ends, so that the uncertainty over whether his successor – the senior-most puisne judge, Justice Ramana – would be elevated, as per convention, could be resolved in time.
If Justice Ramana is not considered fit for elevation as the CJI in case the allegations against him are proved, then Justice R.F. Nariman, who is No. 3 in the Supreme Court’s seniority list, would have to be appointed to succeed Chief Justice Bobde. As Justice Nariman will retire on August 12 next year, he will have a short tenure of about four months (which will include the court’s lengthy summer recess), and pave the way for his succession by Justice Uday Umesh Lalit, who will then have a tenure of 13 months as CJI, till November 8, 2022.
In the normal course, if Justice Ramana is elevated as the CJI on April 24, 2021, Justice Nariman will not have the chance to serve as CJI, and Justice Lalit too will have a very short tenure – of just about two months – as Justice Ramana will retire on August 26, 2022. If Justice Ramana is superseded as CJI when Justice Bobde retires, and if he does not resign following his supersession, then he will have to be superseded again – on August 13, 2021 – after Justice Nariman will retire.
Jagan’s letter and the action he has taken since October 6 when he sent it, shows that he is not unduly concerned about the succession issue. Nor does he seem overly exercised by what needs to be done by his party and government – in terms of mobilising MPs for a motion – if he believes the allegations he has levelled are based on evidence, and can stand legal scrutiny.
In other words, Jagan appears to assume that his letter to the CJI alone would be sufficient to persuade the latter to take the necessary corrective steps that may be required. But it is not clear whether these corrective steps would involve the in-house inquiry and consequent punishment envisaged under the Act, if the judges whom Jagan has named are found guilty of the serious charges made in the letter.
Going by his rather eloquent claim in the beginning of his letter that he is conscious that the authority of the judiciary can be effective only when its independence is secure, one would have expected Jagan to have fully weighed the consequences of his move. A compromised judge is bad for judicial independence and it is logical to suggest he be impeached. But there is no sign that Jagan is interested in going down that path. Having wounded several sitting judges, he does not appear intent on going in for the kill. What the ‘wounds’ he has inflicted will do to the independence of the higher judiciary can easily be guessed.
What the constitution says
In his letter, Jagan also claims that he is aware that the constitution made appropriate provision to ensure the independence of the judiciary.
That provision is contained in Articles 121 and 211 of the constitution. Under Article 121, no discussions shall take place in parliament with respect to the conduct of any judge of the Supreme Court or of a high court in the discharge of his duties except upon a motion for presenting an address to the president praying for the removal of the judge. Under Article 122, courts are also explicitly barred from enquiry into the validity of any proceeding in Parliament. Article 211, which has a similar provision for the state legislature, says that no discussion shall take place in the legislature of a state with respect to the conduct of any judge of the Supreme Court or of a high court in the discharge of his duties. Article 212 is the corresponding provision which protects the proceedings of the state assembly from judicial scrutiny.
It is true that Jagan did not make his allegations against the judges in the legislative assembly, and therefore, the bar under Article 211 is not attracted. Indeed, Jagan may well claim that he did not choose to disclose these allegations in the assembly precisely because of Article 211.
But the question may well be phrased differently: Can the chief minister of a state seek to achieve indirectly what he cannot do directly, that is, by circumventing the bar under Article 211? The answer may well be yes, as the constitution does not envisage such a possibility. As the head of the executive, the chief minister may well disclose information about the conduct of judges outside the assembly, to facilitate public discussion. But the public disclosure of such information may well invite action for contempt of court.
Scope for contempt action?
As both high court judges and a Supreme Court judge are the target of allegations by Jagan, it may require parallel proceedings for contempt of court in both the high court as well as the Supreme Court. It is because the high court cannot invoke its powers to punish for contempt of the Supreme Court, and the Supreme Court cannot do so similarly for contempt of the high court.
In the absence of removal proceedings against a judge in parliament or an in-house inquiry, the courts concerned whose judges have been the target of serious allegations in public, may have no alternative but to initiate contempt of court proceedings against the accuser, in order to redeem themselves. If Prashant Bhushan’s tweets could trigger contempt of court proceedings in the Supreme Court, Jagan’s serious allegations can hardly be ignored by the same court. A constitutional crisis may well be in the offing.
Separation of powers between legislative, executive and judiciary has been regarded as a basic feature of our constitution in Kesavananda Bharati v State of Kerala. The constitution does not envisage supremacy of any of the three organs of the state. But the functioning of all the three organs is controlled by the constitution. Wherever interaction and deliberations among the three organs have been envisaged, a delicate balance and mutual respect are contemplated.
The Centre’s winning hand
The Centre may not have a direct role in the ongoing gang wars in Andhra Pradesh involving the Supreme Court. But if the experience of the last few years is any indication, the Centre is likely to find the situation an opportunity. It is significant that Jagan’s request for the Central Bureau of Investigation (CBI) to inquire into the allegations of a land scam in Amaravati has not been accepted or rejected – but simply kept pending.
For the current dispensation at the Centre, it is not a ‘friendly’ judiciary which may prove to be an asset, because a judiciary, known to be friendly to the executive would lack credibility in the eyes of the public. But a weak judiciary – with senior judges embroiled in serious unproven allegations – could still be expected to deliver judgments favourable to the executive. Therefore, it is in the interest of the executive to let the allegations against judges remain unproven till their retirement – so that they remain weak, with the Damocles’ sword hanging over them throughout their tenure.
Whatever their veracity, Jagan’s allegations against the judges are likely to provide the Modi government at the Centre precisely this opportunity.