Judges no exception

President KR Narayanan has characteristically done the proper thing in asking the Supreme Court to interpret the law to settle the confus...

President KR Narayanan has characteristically done the proper thing in asking the Supreme Court to interpret the law to settle the confusion about the procedure for appointing Supreme Court judges and the transfers of high court judges. Instances abound in the Indian polity and economy where a lack of firm rules has needlessly given rise to suspicions of wrongdoing even when nothing improper may in fact have been done.

Conversely, the lack of clear rules also creates an incentive to take liberties with the spirit of the Constitution because it is in the nature of individuals and institutions to try to aggrandise themselves at the expense of others.

At the very best, the lack of clear rules and guidelines leads to confusion and confrontation. Any or all of these things could have been the case in the disagreements between Law Minister Thambi Durai and Chief Justice M.K. Punchhi. Inevitably, though, the public reading of the situation would have been the worst possible.

This is the strongest presentreason why this confusion must end. Since it was looking like going nowhere without the President8217;s intervention, it is entirely appropriate that Narayanan has stepped in before the prestige of the judiciary took a serious knock.

So even setting aside the current controversy about the Supreme Court Chief Justice8217;s interpretation of his obligation to consult other judges and make recommendations on appointments and high court transfers, transparency is as desirable in the judiciary as anywhere else.

Add to that the perception that has been gaining currency, both in the political establishment and without, that the judiciary in India has become a law unto itself. Not just that, in the current controversy the Chief Justice8217;s very motives in making certain recommendations, and insisting on norms for consultations with other judges which are a departure from convention, are being called into question.

Finally, there is yet another, broader, reason why a clear interpretation of the rules is in order. It is tofocus minds on that essential ingredient of democracy: a division of powers.

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It is hard to take precise positions on just how many judges ought to be consulted before the Chief Justice makes his recommendations to the executive, and when the executive would be right to overrule his recommendation. What is not in doubt is that a clear balance needs to be struck between the executive and the judiciary.

Certainly it would be unhealthy for the executive to gain unlimited control of judicial appointments and transfers: there could be no better way to compromise the judiciary8217;s independence. But what has been happening for the last several years is the appropriation by the judiciary of powers not originally envisaged for it due to abdication by the other wings of government of their powers and responsibilities.

The Chief Justice most certainly is entitled to have a significant say in judicial appointments, but his powers have to be as clearly defined and limited as those of the executive. Not only does thejudiciary have to be accountable, it also has to be seen to be so.