Context:

The letter by Justice Kurian Joseph to the Chief Justice of India, also sent to 22 companion justices, requests for a bench of seven justices to be formed to “suo motu take up the matter of the government sitting on the two names” for proposed elevation. The prolonged silence, writes Justice Kurian Joseph, imperils the “life and existence” of the court. And he adds, “history would not pardon” it were the court to do nothing to question this kind of governmental conduct.

The recent history:

• The first constitutional amendment under the present regime enacted the National Judicial Commission with a facilitating Act;
• Both the constitutional amendment and the Act were struck down by a five-judge bench with a 4:1 decision (with Justice J. Chelameswar dissenting) on the ground that while the amendment affected judicial review as an aspect of the “basic structure” of the Constitution, the Act, in effect, diminished the “primacy” of the CJI and the collegium.
• The court indicated its grounds for doing so; it preserved the plenary powers to amend the Constitution and the law. But the executive did not propose a lawful amendment, and neither did Parliament.
• The court went an extra mile to ask the executive to propose a Memorandum of Procedure (MoP); more than a year has gone by, but the executive has not yet finalised it, despite reminders by the court. Instead, the executive seems to claim a power of veto over the names proposed; in doing so, it seeks to do indirectly what it could not directly — thus violating a foundational axiom of the rule of law.

The new collegium system;

• Contrary to the heavy propaganda now of judges appointing judges, the Union government had itself accepted the new collegium system of five senior-most justices.
• It was also accepted that the executive will convey its concerns to the CJI if a security issue was involved; if the collegium reiterated them, the names will become final.
• Despite occasional grapevine criticism of the collegium, the system continued in place.

Reform of the system

• Any reform of the system will have to come from within the court itself
• There are known ways of managing creative discretion but none to eliminate it altogether from the appointments process

What could be done?

• Good governance must respond to letters, at least by other constitutional authorities. Not merely is the lack of response to the CJI an affront to the dignity of a high constitutional office, but it may also entail the offence of contempt, scandalising the court.
• Second, there are prescribed or ordained ways of handling constitutional disagreements. Sheer assertion of the power of not responding is not one of them. 
• Third, the CJI should be, and must remain, in a position of robust dialogue with dissenting brethren and blend his power as master of roster with respect for the suggestions and opinions of others. 
• The way ahead, as already discussed, is to have a new and creative National Judicial Commission Act, which is acceptable to both the high organs of governance.
• The option of “committed judiciary” is not historically open; it is also undesirable and undemocratic.

Conclusion:

• Constitutional democracy is not imperilled by dissent and disagreement but by an overweening sense of power in one person or institution. The Fundamental Duties of all citizens (under Part IV-A of the Constitution) require us to interrupt power from dreams of limitless sovereignty. We do not yet have a Constitution without constitutionalism; but let not future history say that we did not deserve, in the first place, a constitutional democratic republic. Let us rekindle, with a constitutional flame, all our institutions.

Source:IE