With Ever-Shortening Tenures, Can Any CJI Seriously Think Of Bringing About The Much Needed Reforms In Judiciary?

As India celebrates 75 years of freedom from colonial yoke, and a young generation looks expectantly towards the next quarter century, a key hurdle in the achievement of their dreams is the status of the judiciary.

Our justice system is broken. Cases take years to get resolved. The backlog runs into the millions. And swift justice — the bedrock of any society — is an absent notion.

As a chart below shows, India has had 10 CJIs in the past decade, and if the seniority rule is followed, it will have nine more by 2030.

(To explain, the blue bars mark the tenure of each CJI from 1950, and the brown trend line shows how the average tenure has dropped over time — and is expected to drop further in the next decade).

As a result, a CJI barely has time to find his feet before it is time for him to retire. This is bad management practice, and goes against the basic principles of administration.

First, any senior appointment requires a minimum of three years, for the incumbent to identify administrative issues, devise solutions, and implement them.

Second, the most important duty of an officer is to groom a worthy replacement. That takes years. A chief justice cannot be groomed in a few months.

Now, if the incumbent retires even before a basic review is undertaken, then that reset forces the process to repeat itself. This causes administrative stasis. Routine work will go on, but fundamental overhauls (overdue in our case by a century) will suffer as a result of these frequent changes. At the end of the day, the judiciary is just another government department requiring periodic reforms, and if that process is hampered, then questions have to be asked.

The reason why such an unfortunate situation came to pass is a matter of history. The Emergency of 1975-77, and Indira Gandhi’s efforts to bring the judiciary to heel, shook our legal system to the core. In defence, the Supreme Court slowly started building a wall of judgements, to insulate the Constitution from malintent, and to prevent the risk of a ‘committed judiciary’ (a real fear in vogue in the aftermath of The Emergency).

Over time, this led to the present state of affairs, where Parliament’s duty of appointing the CJI was taken over by the Supreme Court. As a result, there is no accountability to Parliament today, nor parliamentary oversight, of the functioning of the judiciary.

Note how the trend shifts from around 1990 onwards in a chart below:

(To explain: this chart plots cumulative judges versus cumulative years, from 1950 to 2030, on a thin green curve. The blue trend line shows that if appointments had held to the original constitutional provisions, we would have had around 35 CJIs in 80 years — with an average tenure of around 2 years and three months each. However, the orange trend line shows how the rate of appointments changed fairly distinctly from around 1990 onwards).

This is unheard of in a democracy. No government department can be accountable only to itself, or brook no scrutiny.

So, the point of this piece is not to rue the past, but to look ahead, and ask if India can really afford this practice of new CJIs in swift succession any further. How much longer will we have to wait for basic judicial reforms, and can we expect any, as long as this system of self-appointment for severely-truncated tenures persists?

The problem, as a chart below shows, is that the average tenure is set to dip further in this decade.

(To explain: The red curve shows how the overall average tenure reduces from around two years to a little over one by 2030. The reduction in average tenure become even more marked when we study tenure data for the period 1978-2030 — the blue curve hovers just over the one-year mark. And if we look at this century, the orange curve, then we see that the durations of appointment of CJI dip to below one year by 2030).

This trend is disruptive rather than conducive. For comparison, imagine how effectively the central secretariat would function if the Cabinet Secretary was changed every six or eight months? This is what happens when the spectrum swings from one extreme to another — from the threat of interference in the judiciary, to nil accountability.

It is painfully ironic that a supreme court which accords so much importance to fixed tenures in government, does not see the need to apply this important administrative principle to itself. In a landmark judgement of October 2013, the Supreme Court ordered state and central governments to ensure minimum fixed tenures for bureaucrats. The reason: instability of tenure is not in the public interest. Direct quote: “Fixed minimum tenure would not only enable the civil servants to achieve their professional targets, but also help them to function as effective instruments of public policy”.

In light of that judgement, and considering basic principles of public administration, can the honourable justices ever argue that frequent changes at the top are in the public interest? Or, that such a high frequency of fresh appointments allows them to function as effective instruments of public policy?

The seniority principle has become a debilitating fetish, and such obsessive adherence to it has ensnared this institution in a vortex. Now, if they won’t let Parliament intercede, then it is incumbent upon the honourable justices to rectify the decline before it is too late. And even if they do, it will still take half a century to build the average tenure back up to above two years.

India at 75 should be targeting a speedy, modern, efficient, tech-driven judicial system as it accelerates towards a century, and not a perpetuation of the same hurdles which have hampered us for so long in the past.

Just as war is too important to be left to generals, or economics to economists, the judiciary is too important to be left to judges. Otherwise, the legal system won’t just stay broken, but will crumble to bits.