The recent behaviour of the Supreme Court is an attack on the fundamental principles that give it legitimacy.
The Supreme Court has dominated headlines the past week, but for all the wrong reasons. It began with the Chief Justice of India ignoring one of the most basic rules of justice – to not be a judge in one’s own cause – and ended with a bench of the court dismissing a petition to independently investigate an allegation of judicial corruption. This dismissal had the opposite effect of what was intended, and has made many people question what is traditionally considered one of the more trusted institutions in the country.
The judiciary relies on a set of principles and processes to ensure that justice is fair. These principles cloak judges with an aura of near-superhuman fairness and impartiality that help the public view judicial decisions as legitimate. By hamhandedly dismissing the effect that these allegations would have on this perception of fairness (on the grounds that the allegations themselves would besmirch the Supreme Court) a serious blow has been dealt to the core of the judiciary. A significant amount of work will be needed to reverse its impact.
To simplify a cluttered case, there was a dispute involving the cancelled license of a medical college which eventually reached the Supreme Court. A retired judge of the Odisha High Court was implicated in the matter when the CBI alleged that he had taken money to fix the judgment before the SC. Two nearly identical petitions were filed to request an independent investigation, one of which reached the court of Justice Chelamaswar as the CJI was otherwise occupied. Chelameswar felt that there was some urgency in hearing the case, and abrograted the CJI’s power to allott benches by constituting a five-judge bench to hear the petition. The CJI annulled Justice Chelamaswar’s decision saying that only the CJI has the power to constitute benches, and then constituted one himself. Though the CJI was himself not on the bench, one of the other judges in the medical college case was. This bench then dismissed the petition saying it brought the judiciary into disrepute.
This argument ignores the concept that justice must not only be done but seen to be done. An ostrich-like response to dismiss the allegations does little to convince a public that has many questions over the failure of judicial processes.
The Point of Judicial Processes
As a lawyer, it has been a point of curiosity why the profession is maligned so much by jokes. At some level, lawyers themselves are guilty: some defence lawyers seemingly have no morals and the fees certainly don’t help. But perhaps the real reason is that lawyers are whom we all must turn to to fight many of the really important battles in our lives. Whether it is a custody battle for your children, a property dispute over your home or a battle to jail your rapist, it is a lawyer you must appoint as your champion. And unlike gladiatorial battles of old, most laypersons can’t easily comprehend the technicalities and jargon of the contest to understand who is winning. This emasculation feeds into the superiority and relief theories of humour that argue that we find jokes funny to feel more powerful and deal with trauma better.
The question then is, why is the delivery of our justice so reliant on these champions? The answer is human error: when we were reliant on monarchs and chieftains for justice, we were also subject to all their whims and biases. The court system is designed to minimise the possibility of judges acting with the predilections of ordinary humans. Not only must judges be bound by the law, they must also justify their decision with reasons in their judgments. In the Common Law system we have in India, they are additionally constrained by having to follow earlier decisions. Over the centuries, various principles (like innocent until proven guilty) and processes (rules of evidence) have been added to this system of courts to help ensure that it is the process that grants justice, not judges. Unfortunately, the side effect of this system is that legal language requires specificity and cannot function with the glorious amibiguity of literature, and that lawyers must be well versed in not only laws, but the various judgements interperting them (hello information asymmetry).
But as much as judicial processes are intended to minimise the foibles of humans they cannot eradicate them completely. The process is still reliant on interpretation, and all the participants, including the interpreters (the judges) remain ordinary humans. The judiciary is ultimately reliant on good branding; individual errors are forgivable if the public views the entire system as being fair. Without this perception, the only way to enforce judicial decisions would be coercion. This is where the concept of Natural Justice comes in, a fancy, flowery phrase used to describe two principles that are essential for not just the fairness of judicial functions but also their optics.
The Principles of Justice
So what are these principles? The first is Notice, or the idea that anyone who will be affected by the final order or judgment must have an opportunity to defend themselves. This includes notifying them before the hearing so that they have a reasonable window in which to make arrangements to attend proceedings. It is only the reasonable delivery of notice that is sufficient, otherwise people could endlessly delay proceedings by ignoring summons and avoiding court.
The other principle is Bias. A wealth of studies on behavioural economics and psychology show that many instances of bias are subconscious and subtle. For example Judges give more lenient judgments after lunch than before. While judges should not have any biases, and dispense impartial judgements, they remain human, and it is near impossible to eradicate these kinds of biases. But a kind of bias that can be easily spotted and countered is conflict of interest. If I am seeking to sue X for fraud and find out that Judge Y is his brother, I will automatically assume that I am unlikely to achieve a favourable judgment. The actual reasonableness of the decision is irrelevant – X and Y could be Cain and Abel, and have a lifelong hatred of each other (though in that case, X is the one who will make automatic assumptions). The point is that a mere presence of a conflict of interest is enough to cloud the perception of even a well reasoned judgment, and bring the fairness of the process into question.
Justice must not only be done but seen to be done
This is why the Court’s behaviour is violative of basic legal principles. The CJI could have signed off on Justice Chelamswar’s order creating a five-judge bench. Supreme Court judges are actually empowered to pass any order to achieve justice and a strict interpretation of procedure in this case ran counter to justice instead of serving it. But by asserting his authority to be the ‘master of the rolls’, the CJI paid more attention to the ‘Chief’ than the ‘Justice’. Even though he recused himself from the matter he still appointed a Judge with significant conflicts of interest. It is also irrelevant that he has not involved himself as a judge but only exercised his administrative authority. Selecting justices is not merely an administrative function, as the composition of a bench can help determine outcomes. This is why appointments to the US Supreme Court are considered one of the biggest powers of US Presidents.
The CJI was not alone in his zeal to ignore conflicts of interest; the three-judge bench had this gem to contribute when dismissing the petition: “[the] recusal of a judge cannot be asked on the ground of conflict of interest.” The court dismissed the arguments claiming petitioners were simply forum shopping and seeking to select their judges. This method of citing an actual, but unrelated, phenomenon to deflect criticism is akin to Donald Trump responding to criticisms citing fake news. The Court then went on to find the petition contemptuous, but refrained from actually charging the petitioners. The rule of law seems to be replaced by the rule of courts where judges are a fiefdom onto themselves wielding the sword of contempt against any challengers.
The Slow Death of Process
This matter has also seen the Court ignore basic procedural tenets and conventions: multiple lawyer associations were given an opportunity to speak but the actual petitioner was not, two separate petitions were clubbed together without due procedure and the exclusion of judges was not explained. Anuj Bhuwania, in his book Courting the People, argues that the oft-praised mechanism of the PIL has actually eroded judicial procedure. Whether this is the causal relationship or not, recent events are evidence of such an erosion. Unless the judiciary rectifies this trend, the myth of the superhuman judge that the judiciary relies on will disappear, and then the only way it will function will be to find the entire country in contempt of court.