Patriotism may be the last resort of the scoundrel, but “independence” and “democracy” are no less rallying cries for the men in black robes. Last Friday (12 January), four senior judges of the Supreme Court – Justices J Chelameswar, Ranjan Gogoi, Madan Lokur and Kurian Joseph – went public with their allegation that the Chief Justice of India (CJI), Dipak Misra, was cornering too much power, when he was merely “first among equals”. Other allegations were also made, and dark hints thrown that the country’s top judicial officer may himself not be above board in matters of probity.

Justice Chelameswar, apart from highlighting the impact of the CJI’s action on the “independence” of the higher judiciary, also claimed that unless “this institution is preserved, democracy will not survive in this country.”

There is no question that the judiciary needs to be independent, or that democracy must be preserved in the country. But if one looks closely at various actions of the Supreme Court, including those of Justice Chelameswar and his three fellow judges, one has to ask a more serious question: was all this brouhaha about “independence” and “democracy” or about power?

A day after roaring like tigers, behind-the-scenes discussions among various judges have got them mewing now. The Times of India quotes Justice Kurian Joseph as saying that an “issue was raised. Those concerned listened to it. Such actions would not occur in future. (I) believe the issue has been settled”. Justice Gogoi, who is next in line to succeed Dipak Misra as CJI, made a bland statement: “There is no crisis”.

Oh? Then what was Friday all about?

The newspaper’s report clearly says that other judges, especially those in line to become CJI, and the Supreme Court Bar Association, worked behind the scenes to close ranks to end the crisis.

Is the “crisis” and its disappearance within one day not substantially about the powerful trying to ensure that their powers don’t erode in future by washing dirty linen in public? Who loses if the crisis continues, and who gains in the CJI seniority pecking order if there is any unexpected change in the top job right now? Quite clearly, the issues have been papered over as few judges would want to see the judiciary lose credibility and/or its overwhelming powers, by real democratisation and transparency.

Another report in the newspaper also suggests that if the judiciary remains divided, the government could well ask the court to decide whether the collegium system of recommending judicial appointments is not broken and whether it needs change.

The five-judge bench that declared the National Judicial Appointments Commission (NJAC) unconstitutional was also ruling on the issue of power. While Article 124 of the Constitution merely says that judges will be appointed by the President in consultation with senior judges and the CJI, the bench that rejected the NJAC did so because it wanted to retain the collegium’s powers to nominate judges. No country in the world has a judicial system where judges appoint themselves. When judges do both jobs, selecting other judges and deciding who needs to be disciplined, what you will get is corruption and nepotism – a taint our own judiciary cannot shy away from.

Here’s another illustration that it’s often about power. In the Atal Behari Vajpayee era, major amendments were made to the Code of Civil Procedure, once in 1999 and again in 2002, to ensure that courts do not grant endless adjournments (the number was limited to three during the hearing of a suit), that summons to defendants were served within 30 days, and written statements followed the serving of summons within 90 days. This restriction of courts’ powers to endlessly prolong litigation was effectively thrown out of the window when the Supreme Court, in a 2005 case involving the Salem Advocate Bar Association, said the time limits cannot curtail any court’s powers to limit adjournments if the idea was to deliver better justice.

Needless to say, the attempt to curtail court powers to prolong litigation – a key element in judicial corruption – ended with the Supreme Court itself junking it. All courts have now used this judgement to go back to their old ways. Again, it was about the courts being a law unto themselves, about retaining power.

If one looks at the revolt of the four judges again, it is also about power. The two major complaints are that the CJI is allotting important cases to benches of his choice rather than “senior judges”. While seniority is an important principle in judicial appointments, one wonders whether seniority is an overstated differentiator in terms of competence, especially when the top judges are not separated by more than a year or two in terms of age or experience. Seniority seems little more than an argument for demanding more power for oneself.

Another important indicator of the fact that it is more about power than independence is the sheer scale of the encroachment of the judiciary on executive and legislative powers. When the court can decide whether diesel SUVs should be taxed more, or order police investigations directly under its supervision, or decide that the law under which the Board of Control for Cricket in India operated can be set aside for improving governance in the body, one wonders how any of these actions are about independence rather than power.

The villain of the piece is clearly Article 142 of the Constitution, which effectively says that the courts can make the law when it feels this is necessary in the interests of justice. The article reads, inter alia:

“… The Supreme Court, in the exercise of its jurisdiction, may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it, and any decree so passed or orders so made shall be enforceable throughout the territory of India in such manner as may be prescribed by or under any law made by Parliament and, until provision in that behalf is so made, in such manner as the President may by order prescribe…”. (Italics mine).

Simply put, the sentences in italics mean that the court can make laws equal to that of parliament, and not merely interpret laws made by parliament and legislatures.

Article 142 needs to be curtailed. If it isn’t, it will be one more demonstration that all the battles between the judiciary and the executive and/or legislature are really about power, not independence.

If it has to be about independence, two things need to be done.

One, judges must not appoint other judges; this job needs to be done by an impartial commission like the NJAC. Choices have to be transparent, and based on competence and integrity, not something decided behind closed doors.

Two, since no judge can be removed except by impeachment, there is an additional need for a judicial accountability legislation where corruption and malafide action can be investigated and action taken without the need for impeachment.

It is these two reforms that will make the judiciary independent and protect democracy.