The sudden and surprising crisis caused by the action of the four senior Supreme Court judges in going public against their colleague, the Chief Justice, has exposed a particular lacuna in the Constitution. Whatever the merits of the case or the desirability of a public display of disagreements within the collegium, the result is that we are in an impasse.
The impasse has been threatened for a long time. The process by which the collegium has taken over power to appoint the judiciary has supplanted previous constitutional arrangements. By refusing to cooperate with the National Judicial Appointments Commission (NJAC), which was legislated just three years ago, the collegium had defied the authority of a duly elected Executive. This will have to be resolved by a showdown as to where power is derived from in a democratic Republic.
The appointments to the Supreme Court were originally entrusted to the elected government. It was Indira Gandhi’s spectacular misuse of that power to subvert and intimidate judges which caused a questioning of that arrangement. The court then took over the task of judicial appointments in a series of judgments, which climaxed in the collegium system 20 years ago.
It was always an anomaly. The president of the Republic acting on advice of the elected government has supreme authority in the Indian Constitution. This corresponds to the sovereignty of the Crown in Parliament in the British Constitution. But once the Supreme Court abrogated that power to itself while the elected governments were weak, it has perpetuated its power.
Now, however, the collegium has broken up within itself. Speaking with a voice critical of the Chief Justice, the learned judges raise the question: Who Can Judge the Judges? Even if they were right in their allegations against the Chief Justice, who is to decide which side is right? This is the hole at the heart of the Constitution as it has evolved in practice over the years since 1950.
As could be predicted, within a few hours the issue took on a party political colour. If the protest by the four judges is implicitly a critique of the BJP/ NDA government, then the issue has to return to the elected Legislature. The guilt or otherwise of the Chief Justice of the Supreme Court cannot be decided by any judicial body as none is above the Supreme Court.
It is time therefore for the government to declare that the collegium has become dysfunctional. It should assert the constitutional validity of the NJAC. The power ultimately lies with the people of India and their elected representatives. Desperate times require desperate measures. It would be a suitable act in the present emergency for the government to suspend the collegium and ask for the recusal of the four judges as well as the Chief Justice from all cases till the impasse is resolved.
It should then appoint a high-level commission of retired judges and attorney generals to decide on the allegations made by the four judges against the Chief Justice, promising to implement its decisions ‘pending the report of the commission’. It should allow the Supreme Court judges outside the collegium to continue to function as the Supreme Court. In the final analysis, the only effective power is the democratically elected government.