Orson Welles once said, “Nobody gets justice. People only get good luck or bad luck.”
The Supreme Court is the highest court of the land. So, it shouldn’t be surprising that the process of elevating judges must be kept upright, bipartisan and unanimous. The process of the appointment of judges has undergone several modifications. It started with the mere consultations of the Chief Justice and it has now evolved to make use of the ‘collegium system’, which involves the consultations of the four senior-most judges. Once a name is selected for elevation, the matter is debated and bench marked. The name is then given to the government for approval. If there are any differences, the government will cite its reasons which will be re-examined by the collegium. If the collegium feels that the reasons are petty, it will send that name again for the government’s approval. Then the government has no option but to go by the directions of the collegium.
However, the issue of the elevation of Justice KM Joseph as a judge of the Supreme Court has certainly ruffled feathers, with certain ludicrous theories doing the rounds in media. In this context, it is the duty of the Chief Justice to be coherent and observe the rules of law appropriately. After all, the Centre will be forced to elevate the judge anyways, if the collegium reiterates its recommendation. However, what is really dissatisfying is the fact that there has been no word on when the top five judges will meet next to decide its stand.
Our judiciary invariably follows the system of ‘judicial activism’. This activism keeps our judiciary alive and proactive to the needs of the changing times. It also allows judges to give a humane interpretation of the laws, instead of using them merely as regulationary tools. Therefore, judicial activism helps the judges provide something inexpensive – and more importantly, deliver speedy justice.
In light of the recent elevation saga, CJI Dipak Misra should help uphold the law of the land with a humane pulse. However, the stance of indecision (as regards the date of elevation) constitutes contempt of the Constitution that states very vigorously that the judiciary and the executive should be separate entities. The CJI should convene the meeting earnestly and quickly to prevent any dilution of this rule and other rights which are ensured by the Articles 14, 32, 226 and 39A. The idea of ‘judicial activism’ should not be merely selective. The judiciary must uphold and cater to the ‘free will’ in appointments and selections which are within its ambit, by working in tandem – the same way they did to strike off the NJAC Act.
Julius Cesar once said – “If you must break the law, do it to seize power: in all other cases, observe it.”
It’s important that the laws in this context be observed. Only then will the need to seize power not arise.