High drama in Indian Supreme Court crisis

Indian Supreme Court Justices prolong months-long uproar after government dismisses impeachment motion against Chief Justice

The Indian Supreme Court in New Delhi. The independence of the instution has been questioned by supreme court justices who believe chief justice Dipak Misra has ceded independence to the government. Altaf Qadri / APShow less

India’s Supreme Court, which has always held itself to be independent and impartial, is being accused of yielding to the pressures of Prime Minister Narendra Modi’s government.

The judicial crisis has, over the past six months, seen episode after episode of high drama: an unprecedented press conference by four Supreme Court justices criticising Chief Justice Dipak Misra; a move to impeach Mr Misra in parliament; whispers of corruption; and a controversial decision over the mysterious death of a High Court judge.

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On Monday, Venkaiah Naidu, India’s vice president and a former senior leader of Mr Modi’s Bharatiya Janata Party (BJP), rejected the impeachment motion against Mr Misra, which had been moved in the Rajya Sabha, parliament’s upper house. Mr Naidu, whose decision was criticised for being made in a hurry, insisted on Tuesday that the rejection was “timely, not hasty.”

In the wake of Mr Naidu’s decision, two senior Supreme Court justices wrote to Mr Misra on Wednesday, asking that he convene a “full court,” involving all 24 sitting justices, to discuss the future of the institution.

This wasn’t the first concerned letter that Mr Misra has received from his colleagues. Last month, J. Chelameswar, a justice, wrote that the court was in danger of “ceding our independence and our institutional integrity” to “incremental encroachment” from the government.

Mr Chelameswar was also one of four justices who held an extraordinary press conference in January. The justices suggested that Mr Misra had a habit of assigning cases to judges inclined to be favourable to himself, or to the government.

“Wise men should not say in the future that we sold our souls,” Mr Chelameswar said at the press conference.

“Over a period of time, the mutual trust within the court seems to have broken down,” Alok Prasanna Kumar, a senior resident fellow at the Vidhi Centre for Legal Policy, a think tank in Bengaluru, said. “These aren’t just disagreements over judicial matters. It’s more than that.”

Mr Kumar dated the beginning of the rancour to November, when Mr Misra took a corruption case away from Mr Chelameswar’s bench and placed it before other judges. The case, involving a Lucknow medical college, included allegations that the college had tried to bribe Supreme Court justices in a previous case.

Mr Misra himself had been a part of the bench hearing that previous case, although neither he nor the other judges had been named specifically as the intended recipients of bribes.

Prashant Bhushan, one of India’s leading lawyers, called Mr Misra’s act, in November, a case of “serious misconduct… He has violated a basic principle of natural justice, that you can’t be [the] judge in your own cause.”

Mr Misra has also been criticised for allowing the government to “ride roughshod over the appointments of judges,” Mr Kumar said. Although a panel of the court’s judges—known as the collegium—is expected to have full independence in naming new judges to high courts and to the Supreme Court itself, the government has to confirm these appointments.

But Mr Modi’s government has repeatedly delayed appointing the collegium’s picks. On Monday, in the first-ever instance of its kind, the government unilaterally extended the term of a high court judge by just six months, even though the collegium had recommended a year’s extension.

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Last week, a bench headed by Mr Misra also dismissed petitions for an inquiry into the suspicious death, in 2014, of Brijgopal Loya, a Mumbai judge. At the time of his death, ostensibly from a heart attack, Loya had been hearing a case in which Amit Shah, the president of the BJP and Mr Modi’s closest confidant, was accused of ordering a murder.

After a series of investigative articles raised doubts over the official story of Loya’s death, activists and lawyers filed numerous petitions in multiple courts, demanding that the death be investigated. Mr Misra aggregated all the petitions before his bench, which then decided that the petitions merely contained “scurrilous allegations.”

Mr Misra, who has been chief justice since August, is scheduled to leave office in October—a typically short tenure in the position.

Within the legal community, the concern about government interference is now “extremely high,” said V. V. Sivakumar, a partner at the Chennai-based law firm Dua Associates. Equally, the charge that Mr Misra was selectively assigning sensitive cases to amenable judges is “difficult to prove,” he said. “Although on the face of it there did seem to be some smoke behind the fire, ultimately who’s to decide which case was sensitive?”

Mr Sivakumar worried that the faultlines in the “openly divided” court can be exploited by political parties to push their own agendas.

Mr Kumar pointed out that Mr Misra’s colleagues are only pushing him to do what a chief justice is supposed to do. “They’re saying: ‘Stand up to the government. Assert yourself. What’s happening now is not acceptable.’”