CJI Dipak Misra

Renowned lawyer and senior Congress MP Kapil Sibal last week accused the NDA government of "continuously assaulting the judiciary" while echoing Justice Jasti Chelameswar 's view that the Centre was "putting collegium recommendations on the back burner if the names are not to its liking".

Sibal was quoted as saying in a media report, "They have first filled educational institutions with RSS pracharaks. Now, they are trying to infiltrate the judiciary with people having such mindset."

A few weeks ago, Sibal had retorted to CJI Dipak Misra 's courtroom comment that he must read history by saying he was both a student and teacher of history. Sibal is well versed in the judiciary's history too, we are sure. Probably, he needs to refresh his memory, especially because he is among the few in Congress strenuously pushing for moving a removal motion against CJI Misra in Parliament .

The January 12 press conference by senior SC judges led by Justice Chelameswar against the CJI had attracted magnetic support from Left leaders friendly to a rebel judge. The Congress, in the process of replacing old warhorses with prime stallions to keep the party chariot competitive for the derby of general elections, decided to cash in on the situation as many important cases, including politically usable Ayodhya and death of judge B H Loya, were being heard by a CJI-led bench.

Some Congress lawyer-MPs saw the opportunity to hit hard with a removal motion as the judiciary was red hot with an internal dissension fuelled by one person's insatiable desire to wreak vengeance because he could not become CJI. Personal ambitions surely cause disturbances in the normal functioning of a system, be it judiciary or politics. And we surely don't deny what Justice Chelameswar said in his March 21 letter, quoting Robert H Jackson, that "men are more often bribed by their loyalties and ambitions than by money".

Attempts are on to get the draft motion signed by 50 Rajya Sabha MPs, the number required for moving it in Parliament. Before we refer to pages of judicial history to understand Sibal's comment that the NDA government is trying to fill judiciary with "such mindset", a discussion on the fallout of a removal motion against the CJI will help understand the gravity of the situation.

Today, the Congress with 54 MPs in RS may well be able to bring a removal motion against the CJI, howsoever frivolous or imaginary the charges may be. Tomorrow, the NDA, which too has more than 50 MPs in RS, could cook up some charge to bring a removal motion against the No.2 in the SC. Another party can start a campaign for a removal motion against the third in the SC hierarchy.

Where will it end? Which judge will willingly become CJI in such a dreadful scenario and risk his dignity and reputation? Worse, will this kind of political one-upmanship not force a judge to ensure political support before becoming CJI to counter threats of removal?

Bringing a removal motion against a CJI or a judge based on unverified charges has a numbing effect on the institution and stunts public faith in it. Lawyers become MPs not because they are great politicians. Success in court brings them money and fame, accelerating their rise in political parties. When they attempt to cow down the judiciary by casting a shadow through a phantom removal motion, it is akin to an assault on the very tree that nurtured their growth.

Unlike today's Congress, led by a youthful president Rahul Gandhi, the party split in 1969 after a bitter war between veterans on one side and the young Turks on the other led by Indira Gandhi. The split reduced her government to a minority, but she continued as PM with support from Left parties. The landmark SC decision in Golaknath case in 1967 curtailing Congress government's power to amend the Constitution and the political red nose caused by the 1970 Privy Purses judgment forced Indira to call mid-term polls.

A heady 352 seats in Lok Sabha in 1971 strengthened her resolve to infiltrate the SC with "committed judges". The task was meticulously carried out by law minister H R Gokhale, the Bombay HC judge turned politician; steel and mines minister S Mohan Kumaramangalam, a barrister and earlier a prominent communist leader; and S S Ray, another barrister and a close confidant of Indira.

To overrule an 11-judge bench decision in the Golaknath case, the SC decided to set up a 13-judge bench for Kesavananda Bharati case. Eight SC judges were appointed just before the hearing in Kesavananda case began to ensure most of them found place in the 13-judge bench for afavourable ruling.

Justice P Jaganmohan Reddy in his book 'We Have Republic' wrote, "Of these eight, two were said to be Gokhale's nominees (D G Palekar and Y V Chandrachud of Bombay HC); one of Kumaramangalam (K K Mathew of Kerala); two of Ray (S C Roy and A K Mukherjea) and two from the PM (M H Beg and S N Dwivedi); only one was CJI S MSikri's nominee (H R Khanna). One died before the case was heard. Of the seven who heard the case, five upheld the government's point of view.

A legendary researcher on SC judges, George H Gadbois, wrote, "Seven of the nine Sikri era appointees were members of the Kesavananda bench, and five of these did support what can be considered the government's wishes. But they were in the minority with A N Ray. Khanna, who cast the deciding vote, and Mukherjea joined the five pre-Sikri era court appointees in the majority."

The 7-6 majority carved out the basic structure doctrine while fortifying and reinforcing Golaknath judgment much to the chagrin of Indira, whose government wreaked vengeance a day after the Kesavananda judgment was delivered on April 23, 1973, by announcing that A N Ray, fourth senior most SC judge, would be the new CJI to supersede K S Hegde, J M Shelat and A N Grover. The three resigned. The judiciary was to endure many painful wounds inflicted by Congress governments in the succeeding years. We will narrate those some other time. The above example is meant to refresh Sibal's memory about "assault on judiciary".

As a celebrated lawyer, Sibal should discharge his debt for the fame he has earned through the judiciary. He has ability, knowledge and craftsmanship to differentiate himself from hawkish politicians, whose feathers resemble those of Gokhale, Kumaramangalam and Ray. The choice is his.

