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.)

... contd.