OPINION EDIT: RESTORE ORDER
The ball is in the chief justice’s court
Four senior-most Supreme Court judges went public on Friday with an extraordinary warning that the chief justice of India was mishandling sensitive cases and endangering the court’s integrity. The unprecedented message to the public was that they did not want to “sell their souls”, and that unless this institution was preserved, democracy could not be protected in this country. The four judges, who, along with the chief justice, make the current Supreme Court Collegium (the key decision-making body that recommends appointments and transfers in the higher judiciary), also alleged that the chief justice repeatedly intervened to ensure only judges of his choice could hear the matter and highlighted the undue delay in finalising the memorandum of procedure (which provides guidelines so that future appointments by the collegium are transparent and based on eligibility).
Now that the rift is out in the open, the ball is in the chief justice’s court. If his four senior-most colleagues (widely recognised in legal circles as being sober men) feel driven to taking such an extreme step, and setting a terrible precedent, it usually means that the top man is doing something wrong, and has failed to carry his senior colleagues with him. It is time for him to introspect. The usual procedure for selecting judges for Benches should be followed. If there isn’t one, or if the existing norms leave gaps, the collegium should address that issue and the chief justice should invite his colleagues to join him in doing so. No one should have untrammelled administrative privilege. The chief justice is indeed the master of the roster; even the four judges have conceded that this is a well-settled law. But they have alleged that the chief justice has departed so far from set conventions that it will have “unpleasant and undesirable consequences”, ultimately casting a doubt on the integrity of the institution itself.
In the interim, the Supreme Court should give an appropriate public signal that all issues have been amicably resolved. The judges should bear in mind that a house divided against itself cannot stand and they cannot let the country down. It’s encouraging that a day after going public with their grievances, two of the judges have already made statements saying that there is no need for outside intervention and that necessary steps will be taken by the institution itself to sort it out. This is important as a divided Supreme Court has the potential to encourage politicians to interfere in the independence of the judiciary. But the government as well as the opposition would do well to stay out of the issue. The government must also get going on the memorandum of procedure, which has been awaiting its attention for 10 months now, and should not let this episode influence the selection of the next chief justice of India.
There is a larger issue about the decline of, and even the rot in, our statutory and public institutions — the reason why India is often struggling to perform even the most basic functions of a sovereign state and its record in providing even basic public services ranges from modest to dismal. The need for institutional reform is vital if the country is to build and sustain an Indian state for the 21st century.