This is more so afterthe August 25 order of the nine-judge reference bench directing the Union Government to submit to it the written consultations held between Chief Justice Punchhi and his two senior colleagues Justices G.N. Ray and S.C. Agrawal for making the Supreme Court appointments and also with the various chief justices of high courts for filling in the high court vacancies. The order ends the shadow boxing over a reference that made no mention about the recommendations of Chief Justice Punchhi by linking the reference to the record of such recommendations. For the first time the apex court has indicated that it will get to the bottom of a Presidential Ref-erence by going beyond and even behind it. Hence in sum and substance the nine-judge bench has positioned itself to judicially review the acts of a Chief Justice of India and his two senior most colleagues at the time of making the recommendations. This is to be done by applying the standards laid down in the Supreme Court Advocates on Record case. If this is not to bedone then there is little logic in calling for the confidential records of the recommendations made by Chief Justice Punchhi. But the irony is that the views of the nine-judge bench in the Reference are themselves recommendatory. It is upto the same ruling politicians who made the Reference to accept wholly or in part the views of the nine-judge bench finally expressed in the Reference. And if a different political party comes to power by the time the nine-judge bench answers the Reference then the fate of the answers really hangs in the political balance.

Hence from the making of the Reference to its end the political encirclement of the judiciary is complete. This encirclement remains even if the nine-judge Reference bench ultimately reiterates the Supreme Court Adv-ocates on Record Association judgment to ensure judicial primacy through the Chief Justice of India and two of his senior most colleagues. This is so because henceforth any set of ruling politicians can through the Attorney General appointedby them freeze a Chief Justice of India's recommendations for judicial appointments by simply making a reference without mentioning the recommendations. This innovative use of the constitutional provisions for a Presidential Reference is now a permanent weapon in the hands of ruling politicians to play with the Supreme Court.

The linking of Chief Justice Punchhi's recommendations with the Reference strikes at the ruling in the Supreme Court Advocates on Record case that such recommendations cannot be made part of a litigative debate through petitions challenging the appointments or the recommendations, except on the ground of absence of the written consultation between the chief justice of India, his two senior most colleagues and the high court Chief Justice. Without a stay order from the apex court and without mentioning Chief Justice Punchhi's recommendations in the Reference, the appointments stand stayed simply because the ruling politicians will neither openly challenge them by a regular petition norissue warrants of appointments on those recommendations. Little enlightenment can be expected from the politically appointed Advocates General of each state government to whom notices have been issued. There is today no equivalent of the late H.M. Seervai who could fearlessly address the judges with the sharpness derived from intellectual integrity.

The apex court can break this impasse by two steps. One, by realising that it is secrecy and lack of accountability of the Chief Justice of India in making appointments that has given rise to the problem. The documents of written consultation by the Chief Justice of India are kept secret from the public but are known to the ruling politicians who can then play with that information as it suits their political design. The political lawyer with a foot in the judicial door can make selective leaks. The moral test now is whether such documents are made public by the Reference bench. The second step is to realise that a national judiciary that determines the life ofIndians is being fashioned not for judges and lawyers alone. That calls for participation of NGOs and professional associations other than participation of NGOS and professional associations. Only then will the Reference bench hear the relevant national vocabulary and idiom. The strength of the court lies in its association with the honest, educated citizenry.