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Code Red: Why It’s Imperative for the Judiciary to Set Its Own House in Order

The independence of the judiciary can and will only be maintained by not letting anyone outside try to broker a resolution to this current stalemate.

Supreme Court. Credit: Reuters

As regards the allocation of cases, it may be worth considering designating specific kinds of cases to a specific roster of judges based on their area of expertise. Credit: Reuters

Democracy may well be in danger, as exclaimed by four senior (based solely on their appointment date) judges of the Supreme Court of India. Amongst the many questions being asked after the unprecedented press conference are – is the threat to our democracy from within the judiciary? Or are our judicial institutions being threatened from outside by those looking to exert control through extra-judicial means? Is the independence of our judiciary mutually exclusive to greater transparency in judicial functioning? And, should the executive be entitled to partake in judicial administration given that as elected representatives, they represent the collective will?

Amongst the dangers referred to by these judges are certain judicial orders passed by the Supreme Court which have “adversely affected the overall functioning of the justice delivery system and the independence of the high courts”. Issues have also been raised as regards the selection of ‘preferential benches’ to hear ‘sensitive’ matters with far-reaching consequences on the nation. The timing of these allegations is important and they can’t be viewed in isolation from our current political milieu. While these judges expressed concerns about fingers being raised on the integrity of our judiciary, do these recent events not cast doubts on the overall state of all our democratic institutions?

As we ponder on these questions, we must take pride that, regardless of any threat or danger, democracy is still very much alive in India. It is democracy that gives to ‘We The People of India’ the constitutionally guaranteed freedom to fearlessly express our personal opinions about the workings of our apex court, even if sometimes unsubstantiated by facts or being politically motivated. Much has been written and everyone has jumped the bandwagon to suggest a solution to the current impasse. Let it be clarified that while the issue at hand is very serious, the judges are not at war, there is no rebellion or mutiny, there is no groupism and the current standoff is not driven by personal agendas.

The issues pertain to the manner in which administrative functions are being performed within an institution and from the facts presented so far, there can be no doubt of the urgent need for course correction. Such correction will come from within the judiciary. The independence of the judiciary can and will only be maintained by not letting anyone outside try to broker a resolution to this current stalemate. Our judicial institutions are robust to decide their internal matters and the judiciary does not need the backing of any political organisation to set its house in order as suggested by many politicians. Lessons must be learnt from the recent incident and some suggestions are detailed below. But while considering the options for course correction, our judiciary should and must only be guided by factors like how after these current events can we restore and enhance people’s faith in the judiciary, its independence and the fairness of our democratic processes!

Critics are asking that, if these four judges who wrote the letter to the Chief Justice of India, (CJI), were concerned about traditions and conventions that bind judicial administration not being followed, then should not they have considered the convention that judges don’t speak to the press? Questions have also emerged that, has the press conference not caused embarrassment to the judicial institutions, something which these judges wished to avoid as stated in their letter. Reference was made during the press conference that it was being held as a responsibility to the nation and to discharge a debt. It was stated that facts are being disclosed to the nation for the nation to decide.

But many are bewildered by the ‘what’ and ‘how’ will the common man or the consumer of justice decide issues regarding the administrative functioning of the highest court of our land. Did these judges exhaust all internal mechanisms before going to the press? And would equanimity within the judicial institutions not have been better preserved by these four judges first approaching their colleagues within the Supreme Court, following the principle of “consultation of plurality of Judges” to exert moral pressure on the CJI?

Critics may have a point, but as Immanuel Kant, a central figure in modern philosophy expounded many decades ago, “the rightness or wrongness of actions does not depend on their consequences but on whether they fulfill our duty.” Kant believed that there was a “supreme principle of morality”, and he referred to it as “the categorical imperative.” As Harvard Professor Michael Sandel explains Kant’s theory, “the moral worth of an action consists not in the consequences that flow from it, but in the intention from which the act is done. What matters is the motive, and the motive must be of a certain kind. What matter is doing the right thing because it’s right, not for some ulterior motive”. Only the motive of duty confers the moral worth on an action. These four judges iterated that their press conference was driven by their duty to the nation and the judicial institution. Given their impeccable reputations, no one can doubt their motives.

A wake-up call

A lot has already been said about the takeaways for the judiciary from this extraordinary event. To add, this is a wake-up call for the judiciary to immediately re-consider the process of public interest litigation (PIL) in our country. Personal motives have surely begun to dictate the filing of PILs, which were sometimes becoming a dangerous weapon in the hands of an errant opponent. Many so called “super-sensitive cases of national importance” have originated or had an element of being a PIL. One is not suggesting that the entire system of PIL should be done away with. But what is required is to have a greater scrutiny mechanism for these ‘public interest’ petitions right at the threshold and somewhat of a preliminary inquiry before precious judicial time is spent on them.

As regards the allocation of cases in the Supreme Court, it may now be worth considering designating specific kinds of cases to a specific roster of judges, not necessarily based on their seniority but in fact their area of expertise. This system is currently followed across most high courts. Such allocation and the designation of the roster can continue to be determined by the CJI, thereby maintaining his status as the “master of the roster.” The so called ‘sensitive’ matters should either be heard by judges occupying courts besides the CJI, owing only to their experience at the apex court of having handled such ‘sensitive’ matters. Or can even get allocated across all judges in sequential manner of rotation so as to avoid the allegation of selective allocation or bench fixing.

Let’s be clear on a few things – the collegium system, notwithstanding the allegations of it having become ‘dysfunctional’, can legally not be suspended and is here to stay for now. Any attempts to re-introduce a body like the National Judicial Appointments Commission will most likely once again get challenged as interfering with the independence of the judiciary and its constitutionality will get questioned. It is highly unlikely that any judge is going to resign in the aftermath to the recent incident. It is equally unlikely, based on what’s currently in public domain, that impeachment proceedings will get initiated against any judge.

If the call is for a “stronger judiciary” to address “larger problems” being faced within, it requires our judges and judicial institution to unite and work through this impasse collectively. At present, all attention is focused on seeing how the judiciary internally sets its house in order. The steps it takes will have a direct impact on public perception of the fairness of the judicial process in our country. It is the collective duty of our judiciary to ensure that people in this country feel confident about our justice delivery system.

As a sitting Supreme Court judge brilliantly stated, at a non-legal event, a few days after the judges’ press conference, and perhaps not only by coincidence, we need to remind ourselves of the objective of “fraternity” as contained in the preamble to our constitution.

He said “if one is to live cohesively, in today’s nation, indeed in the world, this cardinal value (fraternity) is of extreme importance. For in the words of the Preamble to our great Constitution…, it leads not only to the dignity of the individual, but the unity and integrity of the nation as a whole” and consequently of its democratic institutions. In the current scenario, this is a judicial imperative!

Satvik Varma is a litigation counsel and corporate attorney based in New Delhi. He recently released a book titled Yes, I’m Opinionated.

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