Whatever the Collegium of Supreme Court judges decides on the Karnataka High Court Chief Justice PD Dinakaran case, it is unlikely that it will be the end of the matter. If it decides against his elevation to the Supreme Court, it will be accepting the validity of the allegations against him and this will throw up the obvious question as to how he became the Chief Justice of the Karnataka High Court in the first place and what, if any, is the mechanism to check corruption in the higher judiciary. If however the Collegium dismisses the allegations as untrue, it will have to face wrath of a bar association that includes some of the most respected lawyers in the country, who are convinced the allegations have a basis in fact. This is not the first time the judiciary has been put in the dock. In the Justice Ramaswamy impeachment case, it was only the fact that the Congress party decided to back him in Parliament that saved him; in the case of Justice Shamit Mukherjee, he resigned in the face of charges against him (he was subsequently arrested); and in the case of Justice Soumitra Sen of the Calcutta High Court, the Chief Justice of India himself recommended his impeachment.
A probe by the Central Vigilance Commission or the Central Bureau of Investigation is an obvious solution that presents itself. But once a tool of the executive is involved in clearing judges for higher office, it is obvious that the executive could use this to seek control over the judicial process itself. If the Chief Justice of India is interested in preserving the courts’ autonomy, he will have to go the extra mile to show that he has in place an effective system to deal with such troubling matters. So far, there is little evidence of such a system being in place.
The device of a collegium, in which a panel of judges selected by the Chief Justice of India clears the names of other judges, does not appear to be working well and is seen as being a closed shop. Whether an ombudsman of the type suggested by the lawyer Fali Nariman is the solution, or a National Judicial Commission with a role for the executive as well as for the inputs of the bar, is more workable is something the higher judiciary has to decide. At the moment, what is clear is that the judiciary has been caught on the wrong foot, including in the matter of judges declaring their assets, with the Chief Justice opposing such transparency, citing reasons that appeared to many observers to be flimsy. No one wants faith in the judiciary to be undermined, for that would be a nail in the coffin of Indian democracy. The danger is that if the judges do not offer correctives, others will step into the breach.
