The Solution Should Come From Within

The current controversy has dented the image of the apex court, of the Chief Justice of India and the collegium. And it will take a long time for confidence to return. The political class has never been comfortable with the idea of the collegium. But after a long time, there’s a government with an absolute majority. Coalition governments, despite their desire to bring laws, do not dare to. This time, the government tried to bring in the National Judicial Appointments Commission (NJAC) and a constitutional amendment, but they were struck down. I doubt much can be done by this government. If they bring in a new law, it will again be tested on the touchstone of the Constitution.

Politically sensitive matters always come before the Supreme Court. There have been sensitive matters in every chief justice’s tenure. I had a very uniform policy in allocating cases to benches: go by seniority. That is the safest and the best way.

The CJI also goes by subjects and the expertise of a bench. This is true, particularly in technical cases: fiscal laws, taxation. But the CJI hardly makes all the bench allocations. There are a large number of cases every day. The usual practice is to generate allocations via computers. Only on sensitive issues does the Supreme Court registry seek direction from the CJI.

It appears there were some consistent patterns with the current CJI. The four judges allege that the pattern was not innocent. One wonders how they can prove that. But arbitrariness, anyway, has no place in a public functionary. You cannot do what you want to do, only what the Constitution permits. If the judges feel that some decisions smack of arbitrariness, are perceived to be unfair, then the CJI has to remember the legal tenet that perception is most important for justice.

An institution is bigger than people. And the Supreme Court cannot be allowed to remain like this. The grievances of the justices have to be raised and resolved, to the satisfaction of all. And what has happened will have to be forgotten. I don’t think it is difficult, with so much public debate going on the message must have reached the CJI. A solution must be found. And the solution must come from within. The nation can’t do anything. It is within the precincts of the SC and has to be resolved within the SC.

For now, the court will function as if nothing has happened on the judicial side. But on the administrative side, the scar will be deep and will have to be set right. The initiative must come from the CJI. I am sure that will be the way. The CJI must invite them.

The letter does not give particular issues, but the protesting judges must tell the CJI what the specific issues are. Unsaid issues often get overlooked.

They are all wise men, having worked in the judiciary for 20-21 years. Being judges, they are not inflexible. And they have objectivity. They have to think of the Supreme Court as an institution and not as personal turf.

I am hopeful that the judges will come out with mutually respectable solutions.