COLLEGIUM, ROSTER ROW: CJI MUST ACT
The credibility of an institution cannot depend on the quality of the individuals that inhabit it. Sure, much of how the institution functions will depend on the individuals, but to sacrifice processes and institutional checks and balances in the hope that the judgment of the individuals concerned will suffice isn’t prudent. This is the problem at the core of the current crisis in India’s top court that has come to a head now.
It is a crisis that has pitched judge against judge, the executive against the judiciary, and members of the legislature against the Chief Justice of India.
It is a crisis that has engendered an impeachment motion against the Chief Justice in the Rajya Sabha that the House’s chairman, the vice-president of India, refused to admit; caused the government to return the collegium’s recommendation on the elevation of a judge to the Supreme Court; and sparked off a case in the Supreme Court by one of the country’s former law ministers seeking direction on the allocation of cases in the court. The rejection of the notice on the Chief Justice’s removal, the first such notice in India’s history, could well be challenged legally.
Relations between the government and the Supreme Court are strained because the former wants to institutionalise a better process to select judges to the court and the latter wants to continue with the current method where judges are selected by the collegium, a group of senior judges. The executive and the judiciary have now reached an impasse on this, with the government deciding to drag its feet over the collegium’s recommendations and the Supreme Court deciding to continue with the existing process of selection as if there is no problem.
Relations within the court, between judges, are strained because some senior judges believe that the Chief Justice is allocating important cases to junior judges of the court. Indeed, the rift is deep enough for four senior judges to have gone public with their grievances in January.
And relations are strained between the Chief Justice and Opposition parties, which believe there is enough substance in the complaints of the senior judges. They are also probably unhappy with some unfavourable judgments delivered by the court (although they have been careful enough to not air the second issue because that would imply they are questioning the court’s judgment). There may be something to that, just as there may be something to the theory that there are inter- ests that do not want the Supreme Court to deliver a verdict on the Ram Janambhoomi matter it is hearing before the parliamentary elections in 2019, but the fact is that there are genuine issues in the top court.
This is an opinion shared by several legal and constitutional experts, including many who criticised the Opposition parties’ move to seek removal of the Chief Justice. That is worrying.
The Supreme Court is an institution that most Indians look up to. That isn’t surprising, given the quality of men and women that have been Supreme Court judges. When it matters, the Supreme Court can be counted on to protect the interests of individuals and the Constitution, although there have been a few exceptions to this: an Emergency-era ruling by a five-judge bench including the then Chief Justice, overruling several high court orders that had ruled that the fundamental rights of individuals were inviolable even during a National Emergency is one such. Still, usually, the court does stand up for the things that matter — much like it did in the privacy case.
There are some who cite this to bolster their argument to leave well enough alone, but because neither the selection of judges, not the allocation of cases, is driven by a process, there is a clear counter-argument not to.
With both the government and the Supreme Court locked in their respective positions, the resolution of one problem seems unclear. The Chief Justice of India’s repeated reinforcement of his position as “master of the roster” makes the resolution of the other equally unclear.
That there need to be resolutions to both isn’t just evident but also imperative. The crisis has delayed crucial judicial appointments, cast aspersions on the judiciary, and also resulted in the unedifying spectacle of a critical ruling on land acquisition being overturned by a new ruling only for the new ruling itself to be overturned shortly after.
If this is allowed to continue, India and Indians will lose faith in the top most court of the land; currently, most people trust the judiciary more than they do the executive and the legislature.
The resolution of the crisis is in the hands of the Supreme Court and the Chief Justice. The latter may want to call a meeting of all Supreme Court judges, as indeed, some of the court’s judges have recommended, to address these issues, or he could consider an alternative method, but whatever he chooses to do, the Chief Justice must do soon.
When the country’s executive was found wanting, the judiciary stepped in — this resulted in complaints about judicial overreach but that’s another story — but no institution is equipped to fill the breach caused by the issues in the Supreme Court.