CHALLENGE BEFORE THE SUPREME COURT

I f the Supreme Court is not completely devoid of any concern for its own institutional dignity it would lose not a moment more in firmly shutting down the sordid noises about the alleged misconduct of Chief Justice of India Deepak Misra in the Lucknow medical college bribery case. Neither the accusers nor the accused do themselves any favour by dragging the judiciary down into the public square. Last week’s open display of illmannered proceedings and barely concealed partisan agendas by two separate benches of the apex court was highly avoidable. A better course of action for the senior-most judges was to evolve a consensus on how best to still the controversy. A whisper campaign against judges by the usual suspects in the SC bar, who, admittedly, are not without private agendas and motives of their own, needed to be handled in a more considered manner. Following last week’s ugliness displayed by the ‘rival’ benches, unsubstantiated charges against the CJI and others have only gained wider currency, whetting curiosity far and wide. Also, aside from making a laughing stock of itself, the highest court played smack into the hands of the political executive which for long has been smarting under the ever-increasing activism of the higher judiciary. Their Lordships cannot defend their own case if they are not above reproach – and are widely seen to be so. Unfortunately, there is now a growing talk of a corrupt judiciary. This can be proven wrong only if, led by the apex court, every judicial authority, high and low, adheres to the highest standards of moral and professional conduct.

Having said that, it is a regrettable that the Supreme Court is still dilly-dallying in finalizing the Memorandum of Procedure governing appointments to the higher judiciary. The National Judicial Appointments Commission Bill was passed by multiparty consensus. It had proposed the constitution of the Commission for appointments to various High Courts and the SC by a multi-member body on which government of the day as well as the opposition too would have had representation. A constitution bench headed by the then Chief Justice held the proposed Commission unconstitutional. That was in October 2015. However, in what now appears to be an unwise concession, the court agreed to frame an MoP about appointments to the higher judiciary. That was in December 2015. Since then, neither the Government nor the SC has shown any hurry to finalize the MoP with mutual consent. Draft-MoPs have been discussed by the SC and rejected. One of the sticking points was the government’s insistence to reject a proposed appointment on grounds of ‘national security.’ The misgiving that the provision would be used by the executive is not entirely misplaced. Anyway, of late, there has been no progress on framing the MoP. In this backdrop, a two member-bench last month asked the Government to explain the delay. However, indicating confusion and a breakdown of communication between judges, a few days later, a threemember Bench headed by Chief Justice Misra overruled the twomember bench.

In the earlier decades, the executive had virtually enjoyed a free hand in the matter of these appointments. Only when the power was abused, particularly by law minister Hansraj Bhardwaj, the apex court struck back. The five-member collegium now had the last word, though the nod of the executive was still required. This process too became controversial, with the UPA proposing the NJAC. The enabling Bill was passed after Modi became prime minister. Disinclined to share power, an alarmed SC voided the NJAC. However, having yielded on the MoP, it cannot wriggle out on the commitment. The decision by the CJI-headed bench not to press the Centre would suggest that either he wants to engage the executive or is keen to forget about the MoP as a bad idea. Meanwhile, in this limbo, appointments to various HCs and even to the SC have virtually come down to a trickle, with a number of HCs working with acting chief justices. Appointments recommended by the collegium await the nod of the executive which shows no dispatch. The situation needs to be remedied through engagement at the highest levels in the SC and the government. Vacancies in the HCs and the SC further clog the judicial system. In a spirit of mutual accommodation and in good faith the long-delayed MoP ought to be framed. Before the judiciary can work out a modus vivendi with the executive, it is important for it to set its own house in order. CJI Misra owes it to himself to go the extra mile to reassure Brother Judges that he means well by the institution he has come to head by dint of seniority and circumstance.