The shield of discretion safeguarding judicial independence from the political maelstrom

The recent submission of a motion for impeachment against Justice GR Swaminathan by a coalition of opposition parliamentarians marks a precipitous and disquieting moment in the constitutional history of our republic, one that threatens to subordinate the majesty of the law to the caprices of political theatre. This manoeuvre, ostensibly cloaked in the solemn garb of accountability, reveals itself upon closer scrutiny to be a stratagem bereft of jurisprudential merit and heavy with the scent of opportunism.

The foundational architecture of our democracy, meticulously carved by our forefathers, envisioned the impeachment process not as a weapon of retribution for judicial disagreement, but as a sacred and extraordinary remedy reserved for the rarest instances of proven misbehavior or incapacity.

To weaponize this extreme measure against a sitting judge of a constitutional court merely for the exercise of his judicial conscience in the Thiruparankundram Deepathoon controversy, is to strike a blow at the very heart of judicial independence, a concept enshrined as part of the Basic Structure of the Constitution by the Supreme Court in the epochal Kesavananda Bharati verdict of April 24, 1973.

The genesis of this confrontation lies in a legal dispute of antiquated origins, a labyrinthine matter concerning the lighting of a lamp on the Thiruparankundram hill, a practice steeped in history and now entangled in the vortex of communal interpretation.

The judge, in discharging his duty, took a reasoned call on this multifaceted issue, a decision that has since traversed the appellate hierarchy. It is a matter of record that the State preferred an appeal, and the Division Bench of the Madurai Bench affirmed the single judge’s order, thereby lending it the imprimatur of a higher judicial tier. With the State having moved a Special Leave Petition before the Supreme Court, the matter rests in the lap of the highest court of the land.

Yet, in a display of impatience that smacks of a political construct, the machinery of impeachment has been set in motion even as the legal process takes its natural course. The contempt proceedings initiated before Justice Swaminathan are merely a procedural sequel to the State’s non-compliance, yet they are being painted with a brush of defiance to fuel a narrative of confrontation.

The regretful consequence of this ill-advised action on the part of certain political class is that a fearless and independent judge is being targeted, harassed and intimidated for daring to interpret the law without fear or favor. Disagreement or dissent over a point of view expressed in a legally contested matter, backed by disclosed reasons, can surely not form the basis to seek the removal of a constitutional functionary.

Such grounds are alien to constitutional law and convention, and a perusal of the Constituent Assembly debates of 1946-1949 reveals that the impeachment process was never intended to serve such ulterior and transient causes.

Crucially, the Constitution and the statutory procedures flowing from it have not left the admission of such a motion to the mere tyranny of numbers. The legislative wisdom of Parliament in enacting the procedures to give effect to Article 124(5) of the Constitution, has vested the sole discretion and jurisdiction with the Presiding Officer before whom the motion is moved. It is a fallacy to assume that merely because the basic number threshold of MPs moving the motion has been met, there is a compulsion that the motion shall be admitted and a discussion initiated in Parliament.

The Presiding Officer is not a mere post-box but a constitutional sentinel, empowered to independently examine the application and determine whether it satisfies the substantive requirements for admission.

This vital discretionary power is explicitly codified in Section 3(1) of The Judges (Inquiry) Act, 1968, which mandates that upon the presentation of a motion, the Speaker or the Chairman may consult such persons as they think fit and consider available materials.

The statute unequivocally states that the Speaker or the Chairman may, after consulting such persons, if any, as he thinks fit and after considering such materials, if any, as may be available to him, either admit the motion or refuse to admit the same.

This verbatim provision serves as the bulwark against frivolous or politically motivated attempts to destabilize the judiciary. If the grievance is exclusively confined to a decision made by the Judge on the Deepathoon controversy, as it appears to be, the motion fails to make out a prima facie case of misconduct and thus need not be admitted.

The Presiding Officer must, therefore, take note of the devious design of this political move and clip it at the very threshold by dismissing the motion as untenable. Such discretion is vested exclusively to respond to such instances where the solemnity of the impeachment process is sought to be trivialized.

A summary dismissal would serve as a stinging rebuke to the movers of the motion, acting as a veritable SLP—a Summary Legislative Prohibitory order, if one may coin the phrase—on the face of the opposition members, duly denying them the vicarious and political thrill of debating the issue in the hallowed chambers of Parliament to advance their narrow ends. They must be denied any such opportunity to pillory a sitting judge for political gain. It is the bounden duty of the constitutional authorities to protect the independent judiciary, an unyielding fortress of our democracy, and to ensure that the clamour of political exigency does not drown out the measured voice of the law and We the People.

Justice V Parthiban served as a Judge at the High Court of Madras.