Recently, Justice Dhananjay Chandrachud emphasised on the need to trust judges.
Speaking at a book release, he made the following statement: “In the name of securing accountability from courts, you need to understand that you need to trust your judges and you need to trust your courts because if that element of trust towards the judges and the courts disappears, I think there is a serious problem we are going to have in the democratic set-up itself.”
The question of trust has two dimensions. First, our trust in the ability of a person. Secondly, our trust in the character of a person.
We should be able to believe that our judges are competent and impartial, able and fair. The question which arises, however, is whether we need to trust judges or if judges need us to trust them?
Courts depend on public trust to effectively discharge their functions. As such, courts do not have the independent power to compel obedience of their decisions. They depend on other governmental organs to ensure that judicial decisions are enforced.
In any case, enforcement through coercion has significant limits and ultimately, courts depend on the voluntary acceptance of their authority by the people. If people stop believing in the legitimacy of the courts and the judges, it would be impossible for the them to exercise their adjudicatory authority.
We need to remember that an independent judiciary is not an ancient institution, unlike the executive and the legislature.
For the majority of our civilisational history, we have managed without anything resembling the modern judicial institution. While adjudication of disputes was identified as a separate function, it was seldom entrusted to a cadre of professionals independent in their identity from the executive and the legislature.
People go to the judiciary for adjudication of their disputes as a matter of choice. When they don’t go to the courts, dispute resolution does not stop.
People find other modalities to settle their differences.
A video documentary series (JANA- Justice, Access and the Nation’s Approaches) released by DAKSH highlights a growing tendency in people to avoid the courts and seek non-judicial avenues for a smoother and quicker settlement of their disputes. The important thing is that if people lose their belief in the judiciary, society will evolve and design alternate ways to serve the function of dispute adjudication.
However, if people lose their trust in the judges and the courts, what will happen to the judiciary? If people decide to turn away from the judicial bodies, it raises an existential question for the entire judicial structure. Thus, it is judges who need people to trust them. It is in their own interest that people believe in the judicial process.
Judges need to realise that people will not repose trust simply because it is needed. Trust, more often than not, requires a leap of faith.
However, there has to be some foundation on which that leap is taken. People repose their trust in a person because they know certain things about that person. At times, this trust is based on information about institutional standards and not on knowledge of the person concerned.
For example, in general, people tend to trust and respect defence personnel. Part of it stems from the realisation of the risks and sacrifices involved in their job. Part of it also stems from the realisation that a person can become a member of the defence forces through merit and by no other means.
There is a systemic guarantee of a robust selection procedure which is not tainted by nepotistic or corrupt instincts. Thus, even when people do not know an army officer personally, they know that the officer has acquired his rank through merit. This institutional credit allows a transference of trust to everybody who is a member of the institution.
On the other hand, the process to appoint judges in the high courts and the Supreme Court is an essentially secretive exercise often riddled with allegations of favouritism. We do not know the parameters on which judges are selected and the grounds on which candidates are rejected.
We do not know much about the background of our judges including their educational and professional details.
Few years ago, a person was appointed as a judge of the Calcutta high court when her brother was the Chief Justice of India, presiding over the collegium which appoints judges in the high courts. While J. Kabir claimed that he recused himself from the decision, the optics were definitely problematic.
We have no idea why and when judges are transferred as there is no articulated policy in this respect. The Chief Justice of Madras High Court has resigned over an alleged punitive transfer and the collegium has not felt the need to clarify the reasons for which she was transferred.
At present, there does not seem to be any hint of such a realisation that it is the obligation of judges to earn the trust of the public and not the duty of the public to trust judges.
Trust is not going to materialise on its own. Judges need to introspect on how serious they are about earning the trust of the people.
First, they need to reflect on the fact that they indeed need to earn public trust on a continuous basis and that it is not a matter of entitlement. An expectation of trust without an endeavour to earn it is a bubble that can burst anytime.
Rangin Pallav Tripathy is Fulbright Post-Doctoral Research Scholar at Harvard Law School.