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Looking for a new clarity

The Supreme Court, this past month, provided us with a useful reminder about its worth to our constitutional democracy. Its intervention in the imbroglio over government formation in Karnataka was flawless. The hearings conducted in the early hours of the morning may have been theatrical, but the court’s ultimate decision certainly helped avert a subversion of the Constitution. Yet, much as its decision here deserves appreciation, we must be careful not to allow any ascription of credit to veil the deeper wounds that afflict it, for a litany of problems continues to strike at the court’s independence.

Three of these are especially salient. The first involves the rejection by the government of the collegium’s recommendation of K.M. Joseph, currently Chief Justice of the Uttarakhand High Court, for elevation to the Supreme Court. The second concerns the need for a systemic mechanism to deal with allegations of corruption in the higher judiciary. The third area of worry concerns the embroiled state of Chief Justice of India Dipak Misra, his position as the master of the roster, and the critical question of whether such powers ought to be vested in the hands of one individual.

At first glance, these issues might strike us as unique to the times that we live in, as examples of crises that will eventually pass. But, on closer examination, it becomes clearer that these are, in fact, recurring problems left unaddressed for decades. In trying to resolve the issues, therefore, we must ask ourselves how we got here. As A.G.

Noorani recently wrote in Frontline magazine (“Crisis in Judiciary,” May 11, 2018): “We have not reached the nadir all of a sudden. The decline was long in process.”

In his seminal book, America’s Unwritten Constitution: The Precedents and Principles We Live By, Akhil Reed Amar points to how the written constitution often invites us to heed what’s unwritten, which in turn, he writes, “refers us back in various ways to its written counterpart. Like the Chinese symbols yin and yang, America’s written Constitution and America’s unwritten Constitution form two halves of one whole, with each half gesturing toward the other.”

India’s Constitution is possibly the longest written constitution in the world, but it too leaves much unsaid. Take, for example, Article 124. It states that judges of the Supreme Court shall be appointed by the President, after consultation with certain authorities, including the CJI. But it does not tell us how these consultations are to be made, or what criteria ought to be applied in deciding who becomes a judge.

Filling these voids, therefore, requires the building of conventions that nonetheless maintain a fidelity to the written word. In 1977, in Union of India v. Sankalchand Sheth, the Supreme Court sought to do precisely this, when it ruled that the word “consultation” can never mean “concurrence”. But yet it held in the same case that the President can depart from the CJI’s opinion, in making a transfer or an appointment, as the case may be, only in exceptional circumstances. And when the government does so, it must, wrote Justice V.R. Krishna Iyer, in his concurring opinion, be prepared to establish in court that it possessed “cogent and convincing reasons” for rejecting the CJI’s advice. As a result, in a bid to secure judicial independence, the court, as H.M. Seervai wrote, had read into the Constitution “a requirement which is not there, but which is implicit in the whole object of providing for consultation with the Chief Justice of India.”

Unfortunately, though, the court has in a series of cases rendered the verdict in Sheth nugatory. The informed wisdom of Justice Krishna Iyer has been replaced by the undemocratic excesses of the “collegium system”. This method grants primacy to the judiciary (specifically to the CJI and his four most senior colleagues) in choosing its own members but allows government the power to reject recommendations on any ground whatsoever, with only one caveat: if the collegium were to re-recommend the same name, the government is obligated to accept the proposition.

Now, in the present environment, for the immediate purposes, there is no doubt that the collegium must re-recommend Justice Joseph’s name, to protect at least a veneer of the court’s independence. But this still begs the question, what happens if the government vacillates in conforming Justice Joseph’s elevation even after such a re-recommendation?

In all of this, therefore, one thing has become abundantly clear: the collegium system is simply unworkable. Its ills are plain to see. It’s not only opaque and inequitable, containing not a single constitutionally provided check or balance, but it has done nothing to either improve the judiciary’s independence or provide a seamless system of elevating well-qualified persons to the bench.

Efforts to introduce a judicial appointments commission have already been scuttled, after the court struck down the 99th constitutional amendment. But the trend across liberal, constitutional democracies is towards such a commission. Hence, what we need now is a renewed debate on how to reshape the composition of a potential judicial appointments panel, which will preserve, in some regards, the judiciary’s primacy (which the Supreme Court now enjoins us to do), while also divorcing its membership completely from the executive.

Simultaneously, as we make an endeavour to be rid of the collegium system, we must also work towards putting in place an independent mechanism to deal with allegations of corruption in the judiciary. The quandary on how to guard the autonomy of the court while ensuring judges remain accountable is age-old. The Roman satirist Juvenal famously asked, Quis custodiet ipsos custodes? (Who will guard the guardians themselves?) Impeachment, as Ronald Dworkin wrote in the context of American Presidents, is a “constitutional nuclear weapon”. It ought to be restricted only to the grimmest of emergencies. But, in India, absent any other apparatus to inquire into a charge of judicial corruption, it becomes the only viable option. We must, therefore, strive to find a device that will straddle our concerns for the judiciary’s autonomy with a necessity for greater fairness and transparency. Any claim made against a judge of dishonesty, howsoever trivial, must be investigated by a properly constituted panel, which ought to be granted a status separate from all three established wings of government.

Finally, the CJI’s position as the “master of the roster” requires serious rethinking. The Constitution is silent on the administrative role that the CJI performs. The central authority that he now enjoys, in deciding which cases get to be heard by which benches, is essentially a product of custom (since codified into the Supreme Court Rules of 2013).

But the framers could not have possibly envisaged the Supreme Court sitting in a multitude of panels of two and three judges. The court’s poly-vocal character has been built over a period of time and has now resulted in the CJI wielding enormous power over what might have been originally thought of as a simple managerial task.

Any doctrine that looks to fill the gaps in the Constitution must conform to its basic idea of fairness; seeing the CJI as the master of the roster sans any concomitant accountability simply doesn’t fit with a proper constitutional imagination. Thus, there’s a burning need to define with greater clarity the precise role of the CJI, and to amend the existing framework of rules and regulations on how benches are to be created, and on how work ought to be divided between the different panels.

The Constitution embodies a rousing vision. But it stands on brittle foundations. Protecting its text and its values requires an independent judiciary that is not only committed to constitutionalism but that is also democratically accountable. We cannot rely simply on good fortune to see us through today’s crises. To do so would amount to inviting an annihilation of our republican ethos.