Unjudicious Encroachment

The Supreme Court striking down the CVC appointment is being welcomed in several quarters. In my view, this could set a dangerous precedent even though the spirit of the decision may be somewhat in place (given the CVC digging his heels in firmly). While the Court has been careful to explain that it is dealing with just the "legality of an appointment" which lies outside its purview, the subsequent explanation around "illegality" is shallow. The court seems to be hiding behing clever wordplay while not-so-subtly encroaching into executive domain.

The Courts have decided to take a view on an appointment which is always likely to have an element of subjectivity. In appointments to the Supreme Court itself, there are cases of Judges being elevated despite dissent within the collegium. There are well publicised cases of elevation of Judges after dissenting collegium members retired. In another, an overlooked Judge wrote to the President and was subsequently elevated ostensibly in the interests of diversity. Not to say these appointments were incorrect. The moot point is the subjective element that is bound to creep into most of these appointments. Hence the assumption of superior "judgemental" (pun unintended) ability seems inappropriate.

Independently, there are strong noises about at least one (if not two) retired members of the higher judiciary. One of them holds an equally important constitutional post. He too has taken stonewalling to a new high in the wake of official confirmation of ill-gotten wealth by kin. A HC Judge against whom impeachment proceedings have been initiated is taking refuge in farcical procedural gaps in the proceedings. The Supreme Court is expected to be way more active in ensuring their own brethren are not allowed the luxury of impunity whilst they seek to be conscience-keepers of all arms of the government.

Encroachment into Executive domain by the Judiciary has been prevalent for a while now. Parts of it have been welcome in the wake of ineffective executive intervention. Currently the Judiciary is threatening to cross the line once to often. That it is seen to be doing so without applying the same principles to itself will ultimately lead to complete dilution of credibility.