Congress is reckless, the Supreme Court and the chief justice are not being transparent and the moral voices are conspicuously absent.

Three key issues emerge from the ongoing Supreme Court mess involving the Congress party and Chief Justice of India Dipak Misra. Let’s try to de-clutter.

1) The Congress has not thought its politics through in launching its dharmayudh on the CJI, insinuating that he’s a proxy for the ruling party and its government. It has jumped straight to impeachment without preparing public opinion, or its own cadres for it. It is like beginning a war by launching a nuclear missile so unthinkingly that you end up taking yourselves by surprise.

The confusion shows in the party’s now-we’re-there-now-we-aren’t approach. Kapil Sibal speaks on behalf of the Congress, the two MPs who signed the petition in the Supreme Court claim they are acting in their individual capacity. The party’s top leadership is silent. Barring Sibal, other noted legal stars of the party, including its former law ministers, are mum. So just what the hell is going on? Has the party which boasts of India’s most experienced politicians sleep-walked itself, and the country, into an unprecedented institutional crisis? The top party leadership must come clean on it. Further silence will mean irresponsible, reckless and imprudent politics.

2) The CJI has the right to believe he is innocent and unfairly targeted. But should he be seen to be defending himself? The five-member bench constituted to hear the Congress petition against the Vice-President‘s rejection of their impeachment notice cannot be questioned constitutionally or morally. The bench is headed by Justice A.K. Sikri, who has a fine, tough reputation and will be the second most senior judge after CJI Misra retires and next in line when Justice Ranjan Gogoi takes over.

The CJI has to be naturally excluded as an interested party. Similarly, it’s fair to also exclude the next four judges in seniority because they have taken a public position on his actions. Many charges in the impeachment motion are taken from their statements and letters. To that extent they are interested parties too. The bench therefore consists of the next five judges in seniority, which is fair. Just as the CJI cannot fix benches, the petitioners also cannot pick judges.

The problem arises because of the Supreme Court/CJI’s apparent disinclination to state this clearly and give reasons for why this bench has been chosen. Why they are hesitant to speak this simple truth is intriguing. It also gives their critics ammunition. If the court claims that the order constituting the bench can’t be disclosed, the Congress is right to question that important “somebody’s” motives.

It is in fact disappointing that an institution that pushes for transparency everywhere else is so opaque about itself. It protects itself from RTI, had resisted making public collegium proceedings, and now wouldn’t even say how this bench has been constituted. We have to regrettably take note of a tendency on the part of this court, and especially the CJI, to invest too much moral capital in its/his own defence. The institution is paying for it.

3) The lack of moral leadership in Indian judicial and legal/constitutional universe has reached a perilous level. During past constitutional crises in our country we have looked up to captains of the bar and the bench for direction. Today, too few of yesterday’s leaders are left, probably just Fali Nariman and Soli Sorabjee. They still speak their minds and their voices carry weight but they are too few and not getting younger.

A new leadership hasn’t developed in the past two decades. There are too few new voices that carry weight with moral authority. There is no shortage of younger talent on the bench and surely in the course of time a new generation of conscience keepers of the Indian judiciary will emerge, and may be this is that inflexion point. After all, Nariman and Sorabjee were also in their forties when they acquired their authority. But at this fraught juncture, there is a vacuum that is hurting the judiciary and India.

The most disappointing aspect is the silence of so many former chief justices. If only two or three of them were to speak out, it could help save the institution they owe so much to. What is gagging them? Exaggerated political correctness? Fear of the establishment? Or expectations from it? Tough to say what is worse.

I can do no better than to remind them of what one of their most respected predecessors, late Justice J.S. Verma, used to say: even one individual can build, rebuild or save an institution, but only if he has two attributes – nothing to hide in the past, and no expectation in the future. Do our former top judges, especially the recently retired CJIs, think they pass this test? Justice R.M. Lodha was the first to state a few candid facts at the release of Arun Shourie’s book last week. It is disturbing to find the others not gathering the moral courage to speak up and help protect the judiciary and instead watching silently from the sidelines as it self-destructs.

Postscript: The top court will get a break from this tamasha in a fortnight from now as, on 23 May, former CAG Vinod Rai, who it appointed the de-facto chief of the Board of Control for Cricket in India (BCCI) turns 70. The court’s most active “cricket bench” has set an upper limit of 70 years for all board officials. What will it do now? Find another retired civil servant or judge to replace Rai? Or be in violation of its own orders? Of course, it has the power to change its decision, give Rai an exception or raise the age for all. But really, is that what the court’s powers are all about? Somebody high up in the judiciary needs to reflect on how they have dragged themselves into such a vulnerable situation. Cricket is just one such, if starker, example.

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