The Supreme Court of India appears to be going from dealing with one controversy to another these days: From the press conference held by four senior Supreme Court judges in January, the Judge BH Loya imbrolio, to the impeachment motion against the CJI and the withdrawal of the petition challenging the Rajya Sabha Chairman's order dismissing the motion. It seems that India's most respected institution is faltering and under a cloud of doubt, by virtue of which a larger cloud is cast on India's success and survial as a democractic republic. And today, the Supreme Court faces yet another situation: The collegium will be meeting to discuss the issue of reconsidering the name of Chief Justice of the Uttarakhand High Court KM Joseph for elevation to the apex court.
Breaking with precedent, the government returned the recommendation to elevate Justice Joseph after delaying the decision for a significant amount of time.
It is not as though the Supreme Court has not courted controversy in the past, but this time is different as the controversy is one that surrounds the Executive's overreach insofar as the matters of the court are concerned. Indian judges, as with other judges in the Commonwealth are not expected to wear their political preferences on their sleeves. This is unlike their American colleagues who wear their politics on their sleeve. India's judiciary is required to maintain a stoic sense of impartiality while determining disputes and in particular dealing with the executive.
This is the prime reason this return of the recommendation of Joseph becomes problematic. The return signifies that the Executive is now trying to play politics with the court and the collegium has not convened to take a decision on the matter with Justice J Chelameswar asking that it be convened.
But the question that lingers on the minds of everyone else is why the collegium has not convened yet to assert its independence. The longer the collegium waits, the more anxious the country gets about the independence of the Supreme Court. It is in the interest of the court to preserve this. One way or another, there is no need to delay this decision any longer.
The collegium needs to reject the Centre's view on this matter, if only because failure to do so, would look like the apex court favors the Executive branch and this would only further would cast light on the competence of a sitting high court chief justice.
But the broader point that we as a people need to take pause and consider is this: How did we arrive at the point where this is even an issue?
Relations between the Executive and the Judiciary have been tense in the past, but were always in a position where they could have been ironed out. Right now, however, there appears to be stark division among the ranks of the court itself as to how to determine the present controversy. The court, despite the best efforts of the framers of India's Constitution, has unfortunately taken on a stark political colour.
Such a scenario can never be good for a democracy such as our. This may perhaps work in the US where the Executive and Legislature are truly independent of each other. But in India the Executive and the Legislature are united when it comes to government, given the government needs to always be in control of matters. This changes things. The Supreme Court in India is not the final arbiter of disputes between the branches of the government. It is the final defender of India's Constitution. If the defender of an apolitical constitution, has political aspersions cast on it, then it is the sounding of the death knell for any democracy.
India's democracy is sick, it needs its doctors to heal it. The Supreme Court collegium urgently needs to join ranks and reassert the Supreme Court's power as the guardian of the Constitution.
Updated Date: May 11, 2018 07:46 AM