Is the Supreme Court facing an institutional crisis?

The Supreme Court is definitely facing an institutional crisis of the kind that it has never faced before, mainly, but not exclusively, on account of the most ferocious attack ever on the judiciary by the executive. The current controversy regarding the contrary orders passed by different Benches ended rather amicably, and the institution is perhaps shaken up for the better.

This is a government whose main aim is to destroy the credibility of the judiciary and undermine its independence. Just as Indira Gandhi once wanted a “committed judiciary”, the Central government today wants to saffronise the judiciary. It doesn’t want an independent judiciary. It doesn’t want judges of integrity. It doesn’t want thinking judges. It wants judges who will toe the line.

Judges, it’s time to stand up

The most telling indicator of this assault on the judiciary is the non-appointment of judges. This defiance — and this kind of defiance has never happened, where the collegium sends a list of judges to be appointed and the government does not appoint them — is defiance of the highest order. But what is sad is that our judges have not been able to put their act together and insist on the appointment of judges. They could have done it on the administrative side. They can constitute a Constitution Bench on the most important issue of appointment of judges.

The Supreme Court could have given directions to this government to appoint judges according to whatever Memorandum of Procedure it decides. The time has come for judges to stand up. We are yet to see that determination in our judiciary. Frankly, lawyers across India are disappointed that a shortfall of judges has been there for so long and there is no sign of activity to rectify this by the higher judiciary.

On the question of corruption in the judiciary, I would emphasise the role of the executive in enticing judges with the allotment of houses and appointments to post-retirement statutory posts. The executive wants a judiciary that is beholden to it. Politicians and governments try their best to influence judges. Earlier, there used to be fear in approaching judges; today, it is not so.

In the face of intimidation

We are living in a dangerous time. Judges are very often and very unfairly at the receiving end. They can’t speak up. They can’t appear on TV. In fact, the perception among many — and this tribe is increasing — is that there are more and more judges willing to cross the line. The stories one hears in the corridors of the court are unbelievable, though probably true. Recruiting people of integrity and vision is particularly important today when the executive appears invincible. This is exactly the time to show some spine.

When Benches are being constituted on triple talaq and liquor, surely a Bench can be constituted on the appointment of judges, judges’ salaries, and to inquire about political interference in the judiciary? Why is the judiciary quiet in the face of such intimidation by the executive? Why can’t it evolve an enforceable code of conduct so that if any politician or party tries to influence a judge, this will be immediately reported and punishment be meted? The people and lawyers support the judiciary and expect judges to be resolute.

As told to Anuradha Raman

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