Judiciary's problems are solvable, bring in checks and balances, mend faultlines

The periodical columns in newspapers are often categorised as personal journalism where the personality of the writer would be a key element. Therefore, as one tries to put up a few passages on Indian judiciary, especially in the context of latest row involving judges of the Supreme Court — there is a need to be cautious that while the piece is generally a collection of one’s personal views — at the same time personal prejudices should be kept away. Needless to add, one has highest regards for Indian judiciary and repose immense faith in the system.

However, having said so what comes to light is the latest round of controversy was unwanted but the episode was immensely momentous. A number of pros and cons of Indian judicial system came to light when the four judges of the Supreme Court took to the media — an issue of “impropriety” in the country’s highest court. The issues flagged of by them could be a fresh matter in a sense, but the truth of the matter is to also realise that faultlines in the Indian legal system has surfaced long back.

There was a time when a lawyer made a statement in the court before a judge, it was implicitly believed to be true. But does it any longer?

Hardly a week before January 12 — four-judge mutiny — the Lok Sabha had debated intensely on the merits and demerits of the existing systems in the judiciary.

Although Justices J. Chelameswar, Ranjan Gogoi, Madan B. Lokur and Kurian Joseph did not reveal too many details in their January 12 press conference, it is another matter that they did build up an argument rooted in their perception that some of the powers were abused at top level.

Before dwelling at the issues highlighted by the four sitting judges, it could be understood that the “greatest drawback” of administration of justice in a populous country is the “delay” in delivering the judges.

So before moving further — we are hit with two serious ailments — delay in justice and that second, it would be a general perception that everyone is speaking “untruth”. The worst danger lies in public acceptance of such degradation that all men and women in an institution — which is also a key pillar of democracy — are callous and even take shelter of falsehood. This easily implies there is “courtroom” falsehood and also outside.

Hence comes in the next stage — there is also thus a need to examine why we have overdose of politics in everything. Why even the developments in a courtroom — based on legal procedures and laws — quite often get linked to politics?

Well, there is a saying — the nation gets the kind of leadership it deserves. It is true in terms of armies of lawyers who come out every year from law colleges. I often say that stream cannot be different from the source.

The judicial reform is one statement often made vaguely but without going deep into the subject. In fact, to a large extent the so-called reforms can bring in desired results only when there is qualitative and drastic improvement in the quality of lawyers. Huge number of law colleges in the country — an estimated over 1,000 and odd — in effect churn out “mere pass outs” as lawyers.

A few years back, a newspaper article claimed: “The majority of lawyers in India are lawyers in name alone. Poorly educated...”

Can world’s largest democracy really entertain this?

With this background let us dwell with the issue at hand. What does the “revolt” of the four judges imply — directly and indirectly?

First, the confidence in the judiciary has been blighted by the differences between the Chief Justice and senior judges. The four judges have tried to drive home their argument that there is hardly any immunity for the CJI even as he is the “master of the roster” to decide about the cases going to which bench and so on. The power of discretion cannot be discriminatory.

And the underlining message is that being a “master of the roster” is only for administrative convenience. Needless to suggest that there is a split like situation in the top court as Justices R.K. Agrawal, Arun Mishra and A.M. Khanwilkar in their judgment on November 14, 2017 almost gave the CJI the sweeping power as the “master of the roster”.

Perhaps, the CJI needs to respond to the grave charges. However, I feel CJI Dipak Misra has done the right thing by not addressing a retaliatory press conference. So far, he has been talking to the rebel judges and others, and perhaps, trying to resolve the problems. In effect, the problems are solvable. As a starter, we presume framing rules for the guidance of the “masters of the roster” can avoid any similar controversy in future.

This leads us to talk about so-called judicial reforms. But at the same time we may debate, does it not imply that “reform” needs to come with the active participation of the executive that is the political class and the government in the appointment of judges. Can we really argue that a group of judges with clashing egos and differences may be better than the ones selected by political lobbying, etc? As one reform strategy, one can say, it is necessary to establish a robust internal mechanism to deal with any misconduct of individual judges.

In the name of judicial reform the National Judicial Appointments Commission was proposed and politicians had united and passed an amendment that required a politician and two nominees in the garb of eminent persons to sit and decide about selecting judges. The Supreme Court itself struck it down saying it violated the basic structure of the Constitution.

But the collegium we have in practice since 1998 has not helped the cause of Indian judicial system too. One criticism is that it is like “empire within an empire (in the Supreme Court) itself”. And the other is — perhaps the collegiums have encouraged give and take syndrome.

Coming back to four judges revolt, one can say these were strong reactions and part of a mutiny. One allegation was that sensitive matters were being listed before chosen benches!

So unbridled authority of the CJI is in question. And ultimately checks and balances are essential elements of democracy.

As final words, one can bat for a healthy democratic set up and an independent judiciary where there is also no clash and more importantly no interference into the affairs of one wing from the other. In other words, the executive — that is the government, the ministers and the administration — should stay away from independent functioning of Parliament or state legislature and the judiciary.

G.V. Anshuman Rao is a former chairman of the Andhra Pradesh Electronics Development Corporation and chairman of the G.V. Sudhakar Rao Foundation

Mahitha Rao is a law student at Jindal Law University