The Runaway Judiciary

The explosive press conference by Supreme Court justices may be the impetus to finally fix broken judicial processes.

January 12, 2018 is likely to go down as a date which will live in infamy in the history of the Indian judiciary. The day began like any other – ordinary – with courts hearing cases after coming back from their winter breaks. It quickly acquired a surrealist quality when it was announced that a press conference would be conducted by the four senior-most judges (barring the Chief Justice) sitting in the Supreme Court – a first in the history of the court. Surrealism was then rapidly accompanied by shock as a full-blown constitutional crisis emerged: the judges used the conference to criticise the Chief Justice of India, Dipak Misra, going as far as to say that the judiciary was no longer in a state of order, and that Misra’s refusal to listen to their recommendations on how to fix it had put Indian “democracy at risk.”

The only comparable instance of such open dissent within the ranks of the judiciary is during the Emergency, when three judges resigned in protest against the Indira Gandhi government ignoring the seniority convention to supersede their elevation to the CJI post. That period was the darkest in the history of the Supreme Court and it took decades before its image was restored. The SC was already facing a reputational crisis before Friday as the judges’ letter to the CJI admits. The key question now is not why the press conference happened (or whether it should have) but how to restore the reputation of the judiciary. This discussion should move beyond simple questions of whether the CJI should voluntarily resign or be impeached, and delve into the processes and procedures that allowed such a situation to arise in the first place.

What were the judges’ complaints?

The primary complaint at the heart of the letter the judges sent to the CJI was that he has not exercised his administrative powers properly. (It is necessary to note that this accusation is not leveled just at Misra, but preceding CJIs as well.) But what are these powers? Essentially, the CJI gets to decide which set of judges hear which set of cases and when. In a court that has multiple benches and a steadily increasing backlog, these powers transcend the mere administrative status they are alleged to have. The ability to select which judges hear cases can influence the court’s final decisions (just ask US presidents), while the power to determine timelines can also be influential; the onslaught of SMSs about Aadhaar linkages were enabled by the SC dithering on the constitutional challenge to the identification programme.

The criticisms by the four judges were brought about primarily by three cases. The first is the Medical Council bribery case where Misra, with great haste, intervened with the composition of a bench created to examine allegations of corruption in a judgment he had helped author. This violates one of the most basic principles of justice and fairness: that no person should be a judge in his own cause. The second case, which is the only one specifically mentioned in the judge’s letter to the CJI, is RP Luthra v. Union of India – a case about the revision of the Memorandum of Procedure (MoP) used by the collegium of justices when consulting with central and state governments over the appointment of judges. The judges contend that the issue was settled when a revised MoP was sent to the government without reply in March and that the issue should have been heard by five judges (as is the norm for cases of constitutional importance). They also imply that the decision to re-open the issue of the revised MoP ceded territory to the executive on the question of appointments by stating multiple times that the matter should have been handled within the judiciary.

The third case however, is probably the most symbolic of the judge’s complaints: the investigation into the death of Justice Loya, the CBI judge hearing the Sohrabuddin trial (which implicated current BJP President Amit Shah). Two excellent exposes by Niranjan Takle into the mysterious circumstances surrounding Loya’s death contained accusations of judicial corruption going as high as the Chief Justice of Maharashtra, and a plea to re-investigate the case was then initiated to clear the judiciary’s reputation. This plea was was assigned by the CJI to Arun Mishra, the 10th most senior judge of the court. Justice Gogoi confirmed during the press conference that the way in which the Loya case was handled was a primary instigator in their decision to go public.

What’s the big deal?

It should be clarified that there is (currently) no allegation of impropriety on Arun Mishra’s part; his behaviour is actually irrelevant. The Loya case was a maelstrom of corruption allegations that were not just financial in nature (Loya had allegedly been offered 100 crores by the Chief Justice of Maharashtra) but political as well (the trajectory of the case alters drastically after the BJP’s electoral victory in 2014). It was therefore crucial for the judiciary to not just investigate the matter but also demonstrate that it is still fair, independent and impartial. Normally, cases of such importance and delicacy are assigned to senior judges who are well regarded by the bar. The decision to ignore this convention by appointing a comparatively junior judge (when senior ones were available) without providing any justification automatically brings questions of arbitrariness and malfeasance in the eyes of the public.

The reason that this is so important is that the judiciary is extremely reliant on a reputation of institutional integrity and fairness. The judiciary has no military, armed forces or coercive power – Alexander Hamilton, the American founding father (and current doyen of Broadway) famously stated that the judiciary is the weakest of the three organs of government. The effectiveness of the judiciary is thus predicated not just on it being fair and impartial, but on its perception as such. This perception is only achieved through a track record of consistent action. It is thus vital that the judiciary take all possible steps to correct these shortcomings so that it can fulfill its dual role as the protector of the Constitution, and as a check on the powers of Parliament and government.

So what now?

The immediate repercussion of the explosive press conference is that the eyes of the country (and the world) will be on the judiciary now. This will lead to an additional level of scrutiny and doubt that will hopefully improve the reasoning used in judgments. Courts have increasingly been guilty of justifying pronouncements with extremely faulty arguments that have scant basis in law: the Hadiya case, the National Anthem order (passed, ironically, by Misra but now thankfully overturned) and the Section 377 case being but a few examples that immediately come to mind. It is hoped that judges now try to provide more sound reasoning in an effort to ward off suspicions of impropriety.

However, reliance on such hope would be idealistic to the point of naivete. While there may be some small improvement in the quality of judgments, only systemic change will protect the judiciary now. The events of Friday have highlighted the importance of processes, and it is vital that this shock to the system is used as an opportunity to reform the structure of the judiciary. For example, discussions on how to address judicial backlogs should shift from the personality-centric approach of simply hiring more judges to process-oriented reforms on judicial administration. While Chief Justices have the power to constitute and allocate benches, all justices have administrative duties as well. This is problematic on two levels: the first is that most judges do not have any managerial competence before entering the judiciary and have to learn on the job. The second is that this is a poor allocation of a judge’s time, which would be better utilised clearing the existing docket of cases instead of going through specifications for new IT purchases. Professional adminstrators in the judiciary are thus the need of the day.

Bringing in such managerial competence would also go a long way in fixing what is probably the most criminally under-reported deficiency in the judiciary – data entry. The great work done by Daksh shows that data entry methods are not homogenised across courts in India, with variations between different states as well as different levels of courts. And these variations are not taking into account the discrepancies found within each court caused by incorrect data entries. The end result is that it is nigh impossible to track the history of cases from filings in district courts to appeals in the Supreme Court (at least on any meaningful scale). This renders any aggregation of data on the performance of the judiciary scant and unreliable, making most attempts at reform shots in the dark rather than the empirically based policies they should be.

But while these are all vital reforms that should be implemented to improve the efficacy and (therefore) trust in the judiciary, they don’t deal with the primary contention of the four judges — the administrative power of Chief Justices. Delving into history may provide the answers: in its early days, the Supreme Court did not have multiple benches, but sat as one to decide cases, much like its counterpart in the USA. The US Supreme Court has nine judges who all sit together to decide only cases of constitutional importance. This was supposed to be the primary role of the Supreme Court of India as well, but over the years its time has increasingly been spent on appeals and transfer petitions. Data shows that such cases to the Supreme Court come more from North Indian courts whose proximity to Delhi make recourse to the SC a more feasible course of action.

Separating the dual role of upper courts as constitutional guardians and courts of appeal may provide a solution. Proposals already exist to create separate Courts of Appeals that would allow the High Courts and Supreme Courts to deal with only constitutional questions. These Courts of Appeals would be created at both a state and a national level (with the National Court of Appeals having four benches in four equidistant different parts of the country). Such a measure would make justice more accessible, and limiting the scope of High Courts and Supreme Courts would enable them to become single-bench courts again. And if all judges always sit together, the question of the Chief Justice being the sole decider of bench composition becomes moot.

Whether such a drastic reform actually happens remains to be seen. But nothing provides an impetus to change as much as hitting rock bottom, and the Supreme Court is nearly there. (Justice Misra’s response may make matters worse.) Rather than endlessly debate about whether the judges should have aired their grievances by approaching the president or resigning, all the focus should be on addressing the circumstances that forced such erudite and circumspect individuals to resort to such a brave and drastic course of action in the first place.

About the author

Madhav Chandavarkar

Madhav Chandavarkar is a Research Associate at Takshashila Institution. He earned a 5 year degree in law from Symbiosis Law School only to discover he didn't want to be a (practising) lawyer. His interests include free speech, constitutional law and pop culture.