The Supreme Court of India is in crisis. The Narendra Modi government is playing hardball with the court’s Collegium. The Congress-led opposition, too, has a target: Chief Justice of India Dipak Misra. Each assails the other with sly ambitions to weaken the judicial branch. But behind this chronic politics of motive is a deeper issue of fit: Who, if anyone, should judge the judges?
The Constitution bars parliamentary discussions on judges and their conduct of duties; impeachment proceedings are the only exception. But the latter process is tiring. So judges, in effect, occupy a zone of self-government. They must police their conduct, earnestly attend to allegations of wrongdoings and convey impartiality.
Has the judiciary done these? Hardly. The Supreme Court instead has fashioned a troubling brand of self-government.
A series of decisions has methodically inoculated courts from the claws of accountability even as judges exacted imperious standards from other branches of government. A caste of rules governs India: one for judges, another for all else.
Sample this. The higher judiciary has become a self-appointing body. The Constitution grants the executive an equal say in matters of judicial appointments. The court, however, has elbowed itself into eminence. It has since begrudged even small ounces of transparency. Setting up secretariats to administer appointments and publicising (parts of) collegium discussions are reasonable proposals. But the court opposed them for a long time.
Judges have cushioned themselves from criminal investigations, too. In 1991, the Supreme Court invented a new rule: first information reports against sitting judges require consultations with the chief justice of India. (In practice, it means his concurrence.) Separate approvals are needed to prosecute them. Note: the Constitution only bars criminal proceedings against sitting presidents and governors. The court merrily added judges to the list.
In 2005, Parliament enacted a revolutionary law: the Right to Information Act. But an adamant court refuses to obey the legislation. Still, in 2009, the Delhi High Court brought the chief justice of India, his administrative roles, within the law’s ambit. The Supreme Court promptly accepted an appeal. Close to a decade has lapsed. Yet, a bench summoned to hear the matter hasn’t commenced proceedings
Artful delays aren’t the sole preserve of the executive branch; the judiciary, too, specialises in it. Remember demonetisation? Challenges to its validity still await a full day in court.
And last month, the court rebuffed pleas to constrain the chief justice’s discretion in forming benches. He is an "institution in himself"; to distrust him is to diminish the office, the court reasoned. This is odd. Absolute discretion, the court has long insisted, doesn’t exist in India’s constitutional order. Apparently, it does. But only for judges.
Implicit in these decisions is a decadent idea of self-government: to govern without the law, above the law, in disregard of the law. The court’s sermons on accountability, it is clear, are a backsword; they slay on one side only.
This selective, almost arbitrary application of principles couldn’t have lasted forever. A blowback was inevitable. It has arrived. The Modi government’s slow-act on the collegium’s recommendations, the Congress’s flirting with a motion to unseat the chief justice, the repeated petitions to quell bench-related discretion are revolts against a colonial logic of self-government.