Shadow boxing

The question in the Latin maxim “Quis custodiet ipsos custodes?” (who will guard the guard?), may have vexed the Romans, but the Indian Supreme Court, guardian of India’s Constitution, does have the answer. The elevation of judges to the Supreme Court is decided by Supreme Court judges themselves — the three most senior, the chief justice included. It is an answer that the executive has never reconciled to. Successive governments have questioned this selection process, but never more openly than last week, when the law ministry publicly aired its objections to the proposed elevation of three high court judges to the Supreme Court.

The ostensible reason for executive disquiet is “seniority” — the judges recommended for elevation are not the “senior most” high court judges. But seniority has never ever been the sole criterion: the current chief justice himself was bypassed by less senior judges, before finally making it to the Supreme Court. On the executive side too history is ambivalent. Indira Gandhi’s government famously bypassed the senior-most judges of the Supreme Court. As a result of that episode, the judiciary wrested complete control over the selection process. This is the real reason for executive disquiet — lack of say in who the next Supreme Court judge will be.

The latest executive-judiciary tussle comes at a difficult time. The judicial process is under scrutiny as never before. Allegations of judicial corruption — in the Ghaziabad Provident Fund scam, the Punjab scandal, and the Soumitra Sen case — have prompted the chief justice to take remedial action. The Judges (Inquiry) Bill is being shuttled around Parliament, and is mired in controversy. The unseemly public scrap over the current round of judicial appointments brings to the fore the most sensitive of issues that any democracy grapples with: separation of powers, judicial independence, and checks and balances. The importance of resolving this cannot be overstated. But it must be done through a deliberative process, not by public posturing. It’s time for the judiciary and the executive to speak to, not at, each other.