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House on fire

In a controversial episode, Rajya Sabha Chairman Venkaiah Naidu has rejected the motion moved by the Opposition MPs to impeach Chief Justice of India Justice Dipak Misra. There has been some discussion about the legality of the rejection of the motion in the context of the provisions of the Constitution and the Judges Inquiry Act, 1968. It has been argued that the chairman should not have pre-empted the result of the inquiry by requiring a high burden of proof before the inquiry begins. Here, we will not discuss whether the decision was technically legal. Even if Naidu acted legally, he used poor judgement and misunderstood that the threat to democracy does not emanate from the motion to impeach but rather from his refusal to admit the motion.

A constitutional government envisages a system of mutual checks and balances among the different branches of government as a self-regulatory mechanism. No one branch of government enjoys absolute supremacy over the others. And, no branch of democratic government can be insulated from public discussion. Going by our constitutional structure, the bi-cameral Parliament has a major role in ensuring judicial accountability. Undoubtedly, independence of the judiciary is a fundamental value. But this does not mean that judges should not be answerable when abuses of power are alleged. The premature rejection of the motion prevents Parliament from exercising this role.

By unilaterally rejecting the motion, the chairman essentially assumed that parliamentary deliberation on the impeachment had to be approved by him. He made a determination of the merits of the case and deprived the MPs from voting and exercising their right to hold the judiciary accountable. Now, according to the decision, investigation, discussion and voting on the alleged misconduct of judges can only happen with the previous consent of the chairman.

This decision is even more problematic when seen through the lens of the rights of parliamentary Opposition. While impeaching a judge requires a two-thirds majority in Parliament, the motion to impeach which leads to the formation of an investigatory committee only requires the support of 50 members of the Rajya Sabha. Since the motion to impeach does not require a majority, it can be brought forward solely by Opposition parties, as happened in this case. In a parliamentary system where the government depends on the trust and confidence of Parliament, the Opposition must be able to act by itself. This is required to uphold the separation of the executive branch from the legislative.

Naidu’s decision sets a dangerous precedent curtailing the exercise of the rights of the Opposition in India. It is worrying that this also affects the ability of the Opposition and Parliament to scrutinise the government. What makes this fear acute are related incidents in which Opposition rights have been disregarded. In February, the Opposition boycotted a session in the Rajya Sabha after the House had been adjourned for several days without allowing for the discussion of urgent matters or for the questioning of ministers.

In March, the Lok Sabha passed 99 funding demands from government ministries, 218 amendments, the Finance and Appropriation Bills in just 30 minutes without any discussion at all. Curtailing their rights leads to a weakened Opposition that is no longer able to control and hold accountable neither the government nor the judiciary. It undermines the system of checks and balances that constitutional democracy rests upon.

What is at stake here is the difference between two versions of democracy: A constitutional version of democracy and a majoritarian version of democracy. The majoritarian version of democracy works under the “winner takes it all” principle. An electoral victory should not mean majoritarian monopoly of political power. The constitutional version is a more sophisticated and pluralistic version of democracy. It recognizes that there are others who did not vote for the winner, but whose standing as equal citizens has to be respected.

Views of the majority should not be arbitrarily imposed on the minority. The majority cannot simply preclude discussion and public scrutiny. Democracy means more than periodic voting. We should reject popular majoritarianism in favour of constitutional democracy as the structure of the Indian Constitution demands. But the problem remains that Indian politics is deeply influenced and affected by the majoritarian version. The rejection of the impeachment motion bears the latest testimony to this.
An important part of constitutional democracy is its commitment to deliberative democracy. Deliberative democracy invariably means that citizens from different walks of life engage in mutual discourse to debate their views. Deliberation and the willingness to change one’s position facilitate quality and legitimacy of the decision-making process. Public discourse, either inside or outside Parliament is vital to deliberation. Wherever the discussions take place, in universities, public libraries or elsewhere, political debate performs a larger moral function in a polity. It secures effective participation of the public and enables government accountability. As professor Conrado Mendes identifies, “deliberation entails a basis for political legitimacy.”

The decision to reject the motion cuts short the debate on the allegations against the chief justice of India. The allegations will not be investigated and the topic appears to be removed from the political agenda. Even more concerning in this background is a petition filed in the Supreme Court seeking to virtually ban public discussion in the media concerning impeachment motions.

As a counter-majoritarian institution, the court ought to have dismissed the petition for otherwise, it could have a lasting impact on public deliberation and free speech. However, the fact that the court has instead sought the assistance of the Attorney General in the case is seriously disturbing. Checks and balances and public scrutiny apply to all branches of government. The judiciary is not exempt from this, but it has to be very much subject to it. The controversy should sharpen our attention to the protection of the parliamentary procedures that enable the democratic process.


(Thulasi K Raj is a lawyer at the Kerala High Court and Bastian Steuwer is a doctoral student in Philosophy at the London School of Economics)

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