Our own Robert Bork moment?

Here’s an opinion piece I wrote in today’s Indian Express on whether the dispute over Justice Dinakaran’s appointment is our own ‘Robert Bork moment’ i.e. it fundamentally questions the appointment process to the Supreme Court. I refer to jurist Fali Nariman’s idea of an ombudsman. A couple of questions linger on in my mind.
1. How important were the Indira Gandhi years in pushing the judiciary to self-select? After all, the cases in which it did so (the 1993 and 1998 judges cases) took place around 15 years after Mrs. Gandhi’s supersession of judges. Are there instances of political meddling in the intervening years that form the backdrop for the judges’ cases?
2. I use two measures to judge ‘fairness’ in appointment decisions: cross-institutional concurrence and public scrutiny. What are the other realistic checks and balances?

Written by
Vinay Sitapati
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  • A body like the Judicial Appointments Commission in UK and to oversee it, a Judicial Appointments and Conduct Ombudsman. Italy, Spain and Sweden have law professors in their appointing bodies. Our law commission has recommended on the same lines. All this might just repair the overly 'independent' judiciary out here.

  • Thanks for that. the proposed national judicial commission is built on similar lines. But the problem remains: the SC will have to approve any such idea, and is likely to veto any plan that places some power in another body. Perhaps the most realistic via media is Fali Nariman's suggestion for a retired judge as an ombudsman. This might be acceptable to judges (one of their own after all) plus satisfy the independent decision-making criteria.

  • Dear Vinay

    As you yourself say in comments on the blog, you have simply glided over the phenomena of massive political corruption and maneouvering in post Indira years. They remain central to any understanding of the judges appointment verdict. Apart from the Rajiv era there were the Mandal-Kamandal movements one needs to account for. Not to forget scandals like Hawala, fodder scam etc.

    Massive corruption, scant disregard for the law of the land (both incrementally increased due to fractured coalition politics because now every caste/religious leader had votebanks to elect him/her Parliament, so could do as s/he pleased) is the backdrop against which one must necessarily examine the judges appointment ruling. Don't forget, the author was Justice Verma himself, a man of unimpeachable integrity, ranged against persons of questionable calibre like Lalu and Mulayam! Why not analyse what made him snatch power of appointment from the govt's hand and pass it on to judges? How could he get away with it? I refuse to subscribe to the notion of him having any grand designs to greater power for himself or his fellow judges. It was simply because public opinion was on his side, he enjoyed full public support in his endeavours to innoculate the Supreme Court. Politicians had by then, as they do today, lost all credibility and courts were seen as saviours. One can't ignore these facts in any worthwhile analysis of the judges appointment. It is easy blaming the then judges or SC for appropriating this power to itself. But why did they have to do it? And how could they get away with it remain crucial lemmas.
    It is a different matter ofcourse that now the tide of public opinion is turning against the judges for their various misdemeneaours.


    Abhinav Garg