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Tuesday, June 15, 2021

Courting scrutiny

Robert Bork’s America is a land in which women would be forced into back-alley abortions,blacks would sit at segregated lunch...

Written by Vinay Sitapati |
September 21, 2009 2:58:36 am

Robert Bork’s America is a land in which women would be forced into back-alley abortions,blacks would sit at segregated lunch counters,rogue police could break down citizens’ doors in midnight raids.” So began Edward Kennedy’s famous polemic on the US Senate floor in 1987,barely an hour after a Republican president nominated Bork to the US Supreme Court. Bork later protested that not a single line in that speech was true,but Senator Kennedy had achieved the desired effect: Bork’s nomination was rejected by the Senate. In the process it called into question (others say validated) America’s judicial appointments regime.

Epistolary accusations,by senior lawyers,against the nomination of Karnataka high court Chief Justice P.D. Dinakaran to the highest court of the land are fast turning into our own Bork moment. How will our senate vote?

The answer is not just that we have no senate,but that we have no equivalent. A collegium of the five senior-most Supreme Court judges shortlist nominees themselves,then decide among these names. There is no political oversight — either executive or legislative — nor is there a forum for the public to air grievances. In the Dinakaran case this has meant that the collegium is in effect hearing a complaint against its own decision. (This is because,since the collegium has already recommended Justice Dinakaran’s name,the lawyers’ complaint could be construed to be both against the judge as well as the collegium’s decision. But since the lawyers have no other recourse,it is the very same collegium that hears the complaint.)

How does one ensure that an appointment,for that matter any decision,is “fair”? World-over,two broad checks and balances have emerged: first,that more than one independent body must decide (an agreement between unconnected people will be “fair”); second,that the decision be open to public scrutiny (transparency ensures “fairness”).

The appointment of Supreme Court judges in the US exhibits both features. For one,while the president (executive) proposes,it is the Senate (legislature) that must dispose. Though the presidency and the Senate are often controlled by the same party — as it is currently — separate elections (unlike in India) mean that there is some semblance of independence. The second,more subtle,check is public scrutiny. Senate confirmation hearings are watched live by millions. Ordinary citizens,even former employees of the nominee,testify. Nominees are grilled on jurisprudence as well as personal beliefs. The intensity of the spotlight can be debilitating — what Justice Clarence Thomas famously called “a high-tech lynching” after embarrassing details of his alleged sexual improprieties with a former employee emerged. This may be impractical for India,but the incentive to dig for dirt — Robert Bork’s video rental history was leaked to the press — does ensure that American presidents exhaustively vet any candidate before nominating him or her.

In India,there has always been a single institution in charge of deciding appointments. Until 1993,the law ministry was the sole arbiter; the constitutionally mandated “consultation” with judges was adhered to only when convenient. For instance,in his book Law,Lawyers and Judges former law minister H.R. Bhardwaj mentions two occasions,in 1985 and 1991,when the chief justice’s recommendations were not acted upon by the law ministry. But since 1993 (second judges case) and 1998 (third judges case),it is the judges who call the shots. Which is why there is no other forum where Justice Dinakaran’s appointment can be questioned.

How did the judiciary derive so much power to itself,and why did the legislature silently stand by? The answer to the first question (over-reach) is opposite to the second (under-reach). For if Indira Gandhi’s tenure (she superseded judges on two occasions as punishment for unfavourable verdicts) highlighted the dangers of a “committed judiciary”,the era of coalition politics since then has caused a fractured executive,unwilling to confront their lordships.

No reasons are ever assigned to judicial appointments,nor is any opportunity provided for the public at large to debate,let alone question,nominees. This is unfair even to Justice Dinakaran — should he not have the right to a fair process before his reputation is besmirched? This month’s judgment of the Delhi high court,that the Right to Information Act applies to the Supreme Court Chief Justice’s office,theoretically changes that. It might even be possible to file an RTI application asking for the minutes of the meeting in which Justice Dinakaran was nominated. Whether their lordships acquiesce is an entirely different question.

There are suggestions,such as those from jurist Fali Nariman,that an ombudsman independent of the collegium examine allegations against judges. This addresses the issue of cross-institutional fairness. Nonetheless,long-term changes that incorporate this idea,such as the proposed national judicial commission,are in limbo in part because they envisage decision-making by a wider body. A system that is both insular and opaque is bound to make some bad choices. That the Supreme Court retains the public’s trust,despite having few checks and balances,speaks of its remarkable integrity. It is within this framework that the current controversy must be settled.

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