When The wire I used the word ‘war’ for its headline in the story about Andhra Pradesh Prime Minister YS Jagan Mohan Reddy’s unprecedented letter to Chief Justice of India SA Bobde, initially wondering about its suitability. But after talking to my sources, I am now convinced that ‘war’ is a euphemism and that the correct word may be ‘gang war’, one that has the potential to tarnish the image of the Supreme Court of India during long time.
I will not identify the gangs involved or discuss the merits of the specific accusations that Jagan has made in his letter against the Supreme Court Justice, Justice NV Ramana, and various 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 your accusations are valid, what does Jagan want the CJI to do? He concludes his letter like this:
“In my respectful opinion, the issue can be examined for its esteemed assets to consider the possibility of initiating the steps that are considered (sic) appropriate and appropriate, to guarantee that the neutrality of the State’s judiciary is maintained. More material, if any, that corroborates the previous content and the attached annexes, will be made available to your esteemed institution to corroborate the above. “
If Jagan is so confident of the veracity of his allegations, it is inexplicable why his letter to the CJI does not ask him to launch an internal investigation against the judges he named in the letter. Perhaps he intended to imply such a course of action, but having gone all the way on his accusations, why the shyness about what he expects the CJI to do?
CJI SA Bobde. Photo: PTI / Archive
From internal investigation to impeachment
In any case, if the internal investigation finds that the judges prima facie guilty, what’s next? The CJI, as administrative head, may have to withdraw their judicial work and recommend to the government that they be removed from office under the Judges Investigation Act. The role of the internal committee, therefore, is very limited. And if the internal committee gives a clean fine to the judges, what will Jagan do?
For the parliament to initiate the impeachment process of a judge, 100 members of the Lok Sabha or 50 members of the Rajya Sabha must first serve a motion to the president of the Lok Sabha or the president of the Rajya Sabha, respectively. The speaker or the chair can admit the motion or refuse to admit the same, as Venkaiah Naidu did, when Kapil Sibal made a motion to impeach CJI Dipak Misra a few years ago.
If the motion is admitted, the speaker or president will keep the motion pending and will constitute a three-member investigative committee comprised of a Supreme Court justice, a Supreme Court president, and a distinguished jurist. If the committee finds the judge guilty, the houses of parliament must consider the committee’s report and the motion. The removal of the judge would then depend on the adoption of the motion by the parliament. If the committee does not find the judge guilty, the parliament cannot remove the judge, as the pending motion would become unsuccessful.
Question mark on who will succeed CJI Bobde
It is obvious that Jagan’s aim in making the accusations against the judges cannot be anything other than his removal. But to achieve that purpose, he has to rally the support of parliamentarians to obtain the necessary number from among them to sign the notice of motion for his impeachment in order to get the process going. The procedure under the Judges Investigation Law would have to be completed long before April 23, 2021, when the current CJI’s term ends, so the uncertainty about whether his successor, the highest-ranking judge, Judge Ramana, would be elevated, according to convention, could be resolved in time.
If Justice Ramana is deemed unfit to be promoted as the CJI should the charges against him be proven, then Justice RF Nariman, who is number 3 on the Supreme Court’s seniority list, would have to be appointed to succeed Chief Justice Bobde. As Judge Nariman will retire on August 12 of next year, he will serve a short term of about four months (which will include the court’s long summer recess) and will pave the way for his succession for Judge Uday Umesh Lalit, who will then He will serve a 13-month term as CJI, until November 8, 2022.
In the normal course, if Judge Ramana is elevated as CJI on April 24, 2021, Judge Nariman will not have the opportunity to serve as CJI, and Judge Lalit will also have a very short term, of approximately two months, as judge. . Ramana will retire on August 26, 2022. If Judge Ramana is replaced as CJI when Judge Bobde retires, and if he does not resign after his replacement, then he will have to be replaced again, on August 13, 2021, after Let Judge Nariman do it. retire.
Jagan’s letter and the actions he has taken since when he sent it Oct. 6 show that he is not overly concerned about the succession issue. He also does not seem overly concerned about what his party and his government should do, in terms of mobilizing MPs for a motion, if he believes that the allegations he has made are based on evidence and can withstand legal scrutiny.
In other words, Jagan seems to assume that his letter to the CJI alone would be sufficient to persuade the latter to take any necessary corrective action that may be necessary. But it is not clear whether these corrective measures would involve the internal investigation and the consequent punishment provided by law, if the judges appointed by Jagan are found guilty of the serious charges made in the letter.
Following his rather eloquent assertion at the beginning of his letter that he is aware that the authority of the judiciary can be effective only when his independence is secure, one would have expected Jagan to have fully weighed the consequences of his move. A committed judge is bad for judicial independence and it is logical to suggest that he be charged. But there are no signs that Jagan is interested in going down that path. Having wounded several acting judges, he does not seem to intend to go for the kill. What the “wounds” he has inflicted will affect the independence of the higher judiciary can be easily guessed.
The Andhra Pradesh High Court in Amaravati. Photo: IM3847 / Wikimedia Commons CC BY SA 4.0
What the constitution says
In his letter, Jagan also states that he is aware that the constitution included adequate provisions to guarantee the independence of the judiciary.
This provision is contained in articles 121 and 211 of the Constitution. Under article 121, no discussions shall be held in parliament regarding the conduct of any judge of the Supreme Court or of a higher court in the performance of his duties, except when a motion is made to make a speech to the president praying for the dismissal of the judge. Under Article 122, the courts are also explicitly prohibited from investigating the validity of any procedure in Parliament. Article 211, which has a similar provision for the state legislature, says that there will be no discussion in a state legislature regarding the conduct of any Supreme Court or higher court judge in the performance of their duties. Article 212 is the corresponding provision that protects the procedures of the state assembly from judicial scrutiny.
It is true that Jagan did not make his accusations against the judges in the legislative assembly, and therefore the bar under section 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 can be put in another way: Can the prime minister of a state try to achieve indirectly what he cannot do directly, that is, bypassing the barrier of Article 211? The answer may well be yes, since the constitution does not foresee that possibility. As chief executive, the prime minister may well disclose information about the conduct of judges outside the assembly, to facilitate public discussion. But the public release of such information may well invite contempt of court action.
Scope of the contempt action?
Since both high court judges and a Supreme Court judge are subject to Jagan indictments, parallel proceedings for contempt of court may be required in both the high court and the Supreme Court. This is because the higher court cannot invoke its powers to punish for contempt of the Supreme Court, and the Supreme Court cannot similarly do so for contempt of the higher court.
In the absence of an expulsion proceeding against a judge in parliament or an internal investigation, interested courts whose judges have been the subject of serious accusations in public may have no alternative but to initiate contempt proceedings against the accuser, at order to redeem yourself. If Prashant Bhushan’s tweets could trigger contempt proceedings in the Supreme Court, Jagan’s serious allegations can hardly be ignored by the court itself. A constitutional crisis may well be in sight.
The separation of powers between legislative, executive and judicial has been considered as a basic characteristic of our constitution in Kesavananda Bharati against the state of Kerala. The constitution does not provide for the supremacy of any of the three organs of the state. But the functioning of the three organs is controlled by the constitution. Whenever interaction and deliberations between the three bodies have been foreseen, a delicate balance and mutual respect is contemplated.
The separation of powers between legislative, executive and judicial has been considered as a basic characteristic of our constitution in Kesavananda Bharati against the state of Kerala. Photo: Allen Allen / Flickr (CC BY 2.0)
The winning hand of the Center
The Center may not have a direct role in the ongoing gang wars in Andhra Pradesh involving the Supreme Court. But if the experience of recent years is any indication, the Center is likely to find an opportunity in the situation. It is significant that Jagan’s request that the Central Bureau of Investigation (CBI) investigate the allegations of a land scam in Amaravati was neither accepted nor rejected, but simply remained pending.
For the current administration at the Center, it is not a “friendly” judiciary that can be an advantage, because a judiciary, known for being friendly to the executive, would lack credibility in the public eye. But a weak judiciary, with high-ranking judges embroiled in serious, unsubstantiated charges, could still be expected to issue rulings favorable to the executive. Therefore, it is in the executive’s interest to let the charges against the judges remain unproven until their retirement, so that they remain weak, with the sword of Damocles hanging over them during their tenure.
Whatever their veracity, Jagan’s accusations against the judges are likely to provide the Modi government in the Center with precisely this opportunity.
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