Can We Fix The Deeply Troubled Judiciary?

Kapil Sibal and Prashant Bhushan, representing two Congress MPs, filed a motion in the Supreme Court (Supreme Court): that was normal business. That this motion challenged the dismissal by the Vice President of an impeachment petition against Chief Justice of India (CJI) Dipak Mishra, was a bit shocking. What was very shocking was that they explicitly demanded that a bench headed by Justice J Chelameswar should hear this motion.

Sometimes journalists are accused of acting as “judge, jury and executioner”, but here were two prominent lawyers who wanted to specify not only their plea, but also who should hear it. This is audacious and presumptuous at the best of times, because if lawyers can specify which judge hears their cases, they might as well write the judgment as well. Why bother with an intermediary, as in the case of the dying airman in ‘Catch-22’?

More ominously, it defames the judge concerned by implication: it suggests that the judge is pliable and that there is some ‘understanding’ between the lawyers and the judge. This should be grounds for contempt of court, one would assume as a layman.

In this instance, there were other complicated circumstances: the very motion to impeach the Chief Justice had arisen as the result of apparent bad blood between him and judges number two, three, four and five in seniority order – Justices Chelameswar, Ranjan Gogoi, Madan Lokur and Kurian Joseph – had themselves involved themselves in the CJI impeachment issue by alleging mala fides on the part of the Chief Justice and holding an unprecedented press conference that caused the SC to suffer loss of face.

Thus, if Sibal and Bhushan could argue that the CJI should recuse himself because the motion involved him, then judges two – five should also recuse themselves for the very same reason, as they were parties to the dispute. Thus, it was entirely appropriate that a Constitution bench of judges six – 10 was assigned the case, and it promptly dismissed the motion. At which point Sibal and Bhushan withdrew their petition.

The simplest conclusion one could draw from this drama was that the lawyers had attempted to game the system knowing the facts of their case were not strong; therefore they were expecting that judges that they could influence (or worse, conspire with, or intimidate) would hear their case sympathetically, flouting convention and tradition, as well as their very oath and dignity of office.

This is an absolute attack on the integrity of the Supreme Court, and should, quite rightly, attract the stiff penalties of contempt of court. In fact, the long series of attacks by the Congress on the SC makes one wonder if there is a scorched-earth policy in place: if the Congress cannot be in power, do they want to destroy every institution in the country?

The withering attack on this institution has been so bad that the Supreme Court, which was hitherto treated with the utmost respect by most citizens, now appears deeply diminished, with its credibility in tatters; ordinary people now lump it with other corrupted arms of the state, such as the bureaucracy and the media. This is a serious come-down for the honourable court, and is a matter of grave concern.

Why is the Congress on an apparent war-path? There seem to be two reasons: one is to signal to the current CJI (and everybody else, especially potential SC judges) that unless they toed the Congress line, there would be hell to pay. The other is the eagerness to stuff the court with friendly judges who can help them in future. It may be remembered how Ronald Reagan stuffed the US Supreme Court with friendly conservative judges who had a lasting influence on jurisprudence there.

The first reason has also been viewed by some commentators from the perspective of the Ram Janmabhoomi case. The selfsame Kapil Sibal had made a blunt request to the court (as the lawyer of the Sunni Waqf Board) that the hearing must be deferred until after the 2019 Lok Sabha polls. Apparently, the Congress believes that a quick resolution of the case in 2018 will have a negative impact on their fortunes in the poll. (And perhaps the Waqf Board believes that Congress will support them if they win). The SC refused to accept Sibal’s – rather unreasonable – demand.

It has been broadly rumoured that the current CJI is not open to the idea of delaying the case. It is possible that the ‘revolt’ by justices two - five (some say the “Gang of Four”) over the allegation that the CJI was unfair in allocating cases to them was based on genuine grievances; but it is also possible that they were misled into taking the unprecedented step of washing their dirty linen in public. In any case, the press conference seriously damaged the image of the SC as an Olympian body of pure intellects. The common man began to wonder if they had feet of clay. It will take a lot to repair the reputational damage.

The second reason is even worse: it appears as though some sitting justices are intent on forcing the government to induct a particular judge into the SC, ignoring seniority and propriety as well. In a stinging oped (Judge Kurian Joseph Protests Too Much; He is Politicising Judicial Appointments), R Jagannathan of Swarajya directly accused Judge Kurian Joseph of bad faith and hidden agendas. He was articulating what many people may have thought in private.

This brings to the fore the nagging concern that many observers have had that all is not well not only with the personnel and the processes of the Supreme Court, but also that it is not living up to the ideals that the Constitution envisaged for it. As an example, there have been strange practices: a particular individual was able to get bail at midnight. This individual’s not particularly complicated case of alleged embezzlement has been assigned by a two-judge SC bench to a ‘larger bench’ as though it were a major case of perhaps constitutional import. And it has stayed in that limbo for several years.

Incidentally, Arun Shourie has written a new book, Anita Gets Bail, and the publicity material I received says the following among other things:

“The judiciary has been the one sturdy dyke that has saved us from the excesses of rulers. But recent events remind us of the cracks that have formed: the quality of individuals apart, even the institutional arrangements that had been put in place to preserve the independence of the institution – the collegium, conventions governing the way cases are to be assigned among judges – have frayed.

…through actual cases and judgments of various courts, Arun Shourie enables us to see how frail and vulnerable this ‘last pillar standing’ has become. A judge who by a brazen manipulation of facts lets a prominent politician off… Events and a judgment that let the convicted choose the prosecutor who is to conduct the case against them… Courts that turn a blind eye to life-and-death reforms even as they preoccupy themselves with trivia… Courts that disregard their own judgments on penalizing persons for perjury, for dragging out cases… Courts that do not think through the consequences, even the preventable consequences of their judgments… Judges who prevaricate, who look the other way when some of their own fraternity come under a cloud… A judge who is manifestly unbalanced, judges whose knowledge of the most elementary facts of science is laughable, a judge whose even the Supreme Court is unable to comprehend – all of them continue to hand down rulings that affect the fortunes and lives of thousands…” A damning indictment of the judiciary, prima facie, although we will have to wait to see what evidence he produces.

It is in the interests of all Indians that the Supreme Court regains the respect due to it as the apex court. In that spirit, I’d like to point to a few a practices and make some suggestions in all humility, as a lay person who has had no legal training. Perhaps some of these are not viable, and some many need amendments to the Constitution, but judicial reform is a necessity today.

• The Supreme Court hears all sorts of frivolous stuff, in effect wasting its time.

Solution: Make a strict rule that the SC will hear ONLY constitutional cases. All other cases will be referred down to lower courts

• As a corollary to the above, there will have to be final courts of appeal in non-constitutional cases

Solution: Create a system of SC-level regional courts of appeal that have SC judges being rotated through them. These courts will hear everything that exceeds the purview of high courts, for instance, inter-state disputes; as well as everything that is on appeal from the high courts that are non-Constitutional. The regional courts will need to be set up in each of the regions (eg. Chandigarh, Pune, Bangalore, Guwahati), and SC judges should be rotated through them, spending only their last five years before retirement in the SC itself. An important fringe benefit: by being away from Delhi, they will avoid being compromised by the Lutyens establishment and the lawyer-media-NGO nexus and their many siren-songs

• The Public Interest Litigation (PIL) system, even if it had some real value at some time in the past, has now become an abomination. Anybody with enough money to hire some star lawyer (routinely done by dubious NGOs with covert foreign funding) can now bring anything directly to the Supreme Court, and in a matter of a few months, they can induce the court to rule broadly in ways that are deeply distressing to large numbers of people (eg. jallikattu and Diwali fireworks cases), thus negating the very idea of ‘public interest’. The highly partisan and motivated mainstream media will also chivvy on the justices to rule in ways they approve of.

Solution: All PILs have to be filed at the district court level. If they have merit, let them wind their way up through the normal process of escalation and appeal, so that local and regional sentiments can be accurately assessed along with the points of law and science

• Incredibly long lead-times for cases, which routinely take dozens of years to come to conclusion. Justice delayed is justice denied, and it is not unusual for litigants to die while waiting for their cases to be decided on. This is also affecting the Ease of Doing Business rankings for India.

Solution: Hire more judges, increase the daily work hours of judges, open night courts to double the use of the facilities, reduce the number of vacation days that courts typically get, and most of all, impose severe penalties on lawyers and litigants who create intentional delays, for example by just not showing up. A few ex-parte decisions for absence will deter those who delay as a tactic. In addition, have benchmarks for duration of cases that judges violate at the risk of affecting their confidential reports.

• The selection of judges is opaque, and done by themselves, resulting, quite naturally, in their nephews, sons and other relatives ending up being put forward. The cozy, nepotistic club cannot be sustained.

Solution: The selection needs to be made more transparent, fair and open. SC judges may have to face confirmation hearings in a joint session of Parliament. This is a feedback loop so that the elected representatives of the people also have a role in the selection of (unelected) judges.

• Seniority seems to be the principal criterion for promotion of judges. That may not be best mechanism.

Solution: Create a mechanism that gives weightage to seniority, but also to efficiency, wisdom, precedent-setting judgments, and other criteria that the legal fraternity can come up with. The goal is not to negate seniority, but to give consideration to other aspects of the judge’s performance, knowing that this will necessarily be subjective.