CJI’s Outburst, And The 3 Elephants In The Room He Failed To Recognise

The Chief Justice of India’s outburst at a conference of chief ministers and chief justices in Delhi yesterday (24 April) may have come out of genuine anguish over the high pendency of cases in courts (nearly 3.3 crore), but he was surely wrong to presume that the current impasse over judicial appointments is more due to the government.

CJI TS Thakur was quoted by The Times of India as saying; “It is not only in the name of the litigant or people languishing in jails, but also in the name of development of the country, its progress, that I beseech you to rise to the occasion and realise that it is not enough to criticise. You cannot shift the entire burden on the judiciary.”

While the sight of a CJI pleading with the government is sure to tilt the balance of public opinion against the government, Justice Thakur should know that for every finger pointed outwards, three point inwards - towards yourself. Judges are supposed to about reason and the law, not pure emotion. It would have been equally easy for Prime Minister Narendra Modi to make an emotional point about delays in settling court cases involving the poor, but he did the sensible thing of seeking a closed door meeting between executive and judiciary to sort out issues. He made more mature points than the CJI.

If the delay in appointing judges is a finger pointing towards the government (assuming it is deliberately sitting on current judicial appointments), other fingers point towards the judiciary. The raw numbers, according to Justice Thakur, are the following: there has been an increase in vacancies in high courts to 470, with only 58 new appointments being made after the National Judicial Appointments Commission (NJAC) was struck down. The Law Commission wanted 50 judges per million population, but India has barely 17-18.

To blame this government for all the recent delays is surely uncharitable, for the simple fact is that it is the court’s predilections that have held up appointments. The NJAC was put into effect around mid-April 2015; the Supreme Court bench took six months to reject the NJAC (so no new appointments in-between); then, two months later, it asked the government to prepare a memorandum of procedure (MoP) for short-listing and finalising judges for appointment; this again is a work-in-progress. This MoP is now stuck in the government-judiciary cold war. The recent build-up of vacancies is largely because of the freeze in judicial appointments between last April and now. And most of the delay was due to the judiciary’s decision to block the NJAC, when it could well have allowed the NJAC to be constituted and function as an interim measure while the case was being decided.

It is also wrong of the CJI to presume that judicial appointments can be fast-tracked when the two players in the game, the executive and the top judiciary, still cannot agree on the process of selection.

There are three elephants in the room pointing their accusing trunks at the judiciary, and these are the issues Justice Thakur ought to address first. Three C’s lie at the heart of the judiciary’s failures: constitutional hijack; corruption, and cause-fixation. The judiciary has run a coach-and-four over the constitutional provisions on judges’ selection since the early 1990s; it has failed to tackle corruption in the judiciary; and it has become besotted with sundry populist causes and made public interest litigation (PIL) the central element in the delivery of justice.

Let’s get into some detail on this.

Constitutional hijack: As one has repeatedly pointed out, the judiciary began excluding the executive from any role in the appointment of judges after the second judges case in 1993 (which made the CJI the primary player in higher judicial appointments), and the third judges case (1998), which shifted power from the CJI to a collegium. When the government tried to claw back some of its original powers under article 124 (which said the President will consult the CJI while making judicial appointments) by enacting the NJAC, the Supreme Court again nixed that.

The only correct position is that both executive and judiciary must have equal roles in judicial appointments. The imbalance of power, where the government is excluded, was created by the judiciary, and it is the judiciary which must correct this. This imbalance is at the root of the current tensions. The NJAC gave both the judiciary and the government decent roles in the appointment of judges. It would have made transparency explicit, and could have been made to work, but the judiciary voted in its own favour.

Till this power imbalance is corrected, tensions will remain. Unlike the UPA, which “managed” the judiciary by promising them post-retirement jobs, the NJAC was a more honest effort by the Modi government to get the judiciary to share power in appointing judges with the executive, as was the original intent of the constitution. Between January 2008 and 2012, the UPA gave jobs to 18 out of 23 retiring Supreme Court judges – which tells its own story about the kinds of influence the government could indirectly have on Supreme Court judges. The NJAC would have made things more transparent and accountable, but the court nixed that.

Corruption: This is the second elephant in the room. It is an open secret that the Indian judiciary has many rotten apples, and the collegium system of judges appointing judges helped perpetuate this by allowing even corrupt judges to be appointed. The procedure for getting rid of corrupt judges is simply too elaborate to be a deterrent. Only parliament can impeach bad judges, and this almost never happens. Sixty-six years after we adopted a constitution, only two higher judiciary judges have ever been sought to be impeached.

This means many, many corrupt judges exist in the system, and judicial delays have a lot to do with their existence: it is corrupt judges who play mischief with the law either by giving wrong judgments or by endless delays that benefit rich or crooked litigants.

The Supreme Court done little to end judicial corruption despite the free hand it has had on judicial appointments so far. On the contrary, it has copped out whenever it was confronted with charges of corruption.

In September 2010, senior counsel Shanti Bhushan made an application in the Supreme Court alleging that eight of 16 former Supreme Court CJIs were corrupt. He even sent their names in a sealed cover to the bench hearing the appeal. The application said: “The judiciary has adopted the policy of sweeping all allegations of judicial corruption under the carpet in the belief that such allegations might tarnish the image of the judiciary. It does not realise that this policy has played a big role in increasing judicial corruption. There was a common perception that whenever such efforts were made by anyone, the judiciary tries to target him by the use of the power of contempt.”

Interestingly, the Supreme Court neither did anything about judicial corruption nor did it haul up Bhushan for contempt for his act of calling eight former judges corrupt. Prashant Bhushan, Shanti Bhushan’s son, then actually made allegations against six of them: Justice Ranganath Mishra, Justice KN Singh, Justice AM Ahmadi, Justice MM Punchi, Justice AS Anand and Justice YK Sabharwal.

In 2014, former Supreme Court judge Markandey Katju wrote in his blog that three former CJIs were effectively complicit in the appointment of a corrupt judge in Tamil Nadu (read here).

And yet, the Supreme Court thinks independence is about judges having the last say in appointing other judges.

Causes – popular and unpopular: Public interest litigation (PIL) has become a key weapon of justice delivery. It has empowered ordinary NGOs to go directly to courts to seek remedies. While this has been very useful in cases like the 2G scam or the coal blocks allocation scandal, PILs have also clogged up the courts’ case-books. According to data given in reply to an RTI query in 2015, the Supreme Court alone had 1,598 PILs pending with it. The number of PILs filed shot up from a low of two in 1994 to 905 in 2014.

And these numbers only relate to the Supreme Court. The high courts are also keen to pick up hot-button cases that appeal to the popular imagination. The recent case, where the Bombay High Court asked the Indian Premier League to move cricket matches out of the state due to the drought, is a case in point. Pictures of cricket pitches being watered apparently infuriated citizens, and the court, but this is a bit like saying those who have enough food should not eat because someone else is starving.

There is a fair chance that the judicial obsession with PILs is prompting more NGOs and mischief-mongers to file PILs so that they can take their problems directly to the higher courts.

Does Justice Thakur believe that this obsession with PILs is not making a difference to court delays? It is time for the judiciary to introspect, too.