Justice Markandey Katju’s mendacious allegations against his former colleagues, rather than provoking a sensible debate, has brought out just how dangerous the framework within which we think of judicial accountability is. It is pointless to speculate on Katju’s motives. But only the most obtuse observer will fail to recognise the political implications of what he has said. Politicians are salivating at the prospect of the judiciary committing hara kiri on its own legitimacy, thus creating grounds for greater control. After two decades, a legislative majority makes it possible that at the end of this road of delegitimisation will come, not greater accountability, but more political control. Katju has obliged at the moment when these tussles are getting particularly acute.
The judiciary’s damage is self-inflicted. This column has consistently argued that there is a serious crisis in the judiciary. Of late, the Supreme Court, in particular, has not distinguished itself. It has abdicated moral stewardship of the Constitution. The intellectual quality of judgments is widely perceived to be mediocre. Several judges have come under the ambit of all kinds of unseemly allegations. Cumulatively, this has led to two conclusions. First, the judicial usurpation that gave it almost exclusive powers over higher judicial appointments needs to be revisited; the executive’s more explicit role needs to be restored. Second, some mechanism needs to be devised to hold judges accountable. Hence the call for a national judicial appointments commission.
The exact design of this commission will be a matter for another occasion. But two dangerous tendencies in our current clamour for accountability need urgent attention. The first is the dangerous elevation of the Intelligence Bureau to the role of ultimate arbiter of character and competence. I cannot speak to particular cases. But the ease with which IB reports are used as an argument for or against candidates should give sleepless nights to those citizens who care about democracy. This is so for several reasons. It is ironic that in the discourse of accountability, we often invoke the single most unaccountable institution in Indian democracy: the Intelligence Bureau. This shadowy institution, whose own functioning is beyond all accountability, whose own norms are unclear and whose competence is doubtful, is now paraded as the final word on the suitability of candidates.
So let us put it gracelessly. Inputs from the IB can be important. But if they are accepted uncritically, if no one has the courage to ever overrule them, Indian democracy will be in great danger. How many times in the past have you heard that potentially worthy judges were scuttled by the IB? Katju may feel entitled to ask his brother judges why they went against what continued…