 "Why India needs urgent reform in higher judiciary")
Recent statements by the Union Law Minister and the Chief Justice of India have attracted a lot of attention. However, there is a real fear that this attention will eventually fizzle away, and we will revert to a business-as-usual approach.
Needless to say that judicial reforms have been on the agenda of reform enthusiasts for a long time. That they haven’t happened is not so much due to lack of political consensus, but partly due to political fallout and possibility of the Supreme Court striking down any such broad changes using the basic structure doctrine.
The basic structure argument does not find its backing in India’s constitutional structure. If anything, BR Ambedkar himself had argued for the Constitution to be amended from time to time. The distinction between what is the basic structure of the Constitution and what is not is debatable, and perhaps an outcome of judicial innovation much like how Public Interest Litigation is also a judicial intervention.
It was this basic structure argument that was used to strike down the amendments to the procedure for appointment of judges which were brought in during the first term of the Narendra Modi government. As a consequence, we have judges appointing judges — without any adequate mechanism for checks and balances.
I do not even wish to go into the issue of nepotism in the higher judiciary — because that opens up an entirely different debate on whether there is discrimination in such appointments or not; and more importantly, whether such discrimination plays a role in discriminatory judicial outcomes. What we do know is that judicial procedures are seldom applied consistently, and this is not limited to higher judiciary but also to the lower courts.
Impact Shorts
More ShortsWe must further recall that it was not always that judges in India appointed judges. This practice started in 1993 up until when the Union cabinet would suggest the names to the President for appointing judges. The government can, however, reject the names of the proposed judges, however this power has been seldom exercised.
It is here that we want to highlight the National Judicial Appointments Commission (NJAC), which was passed as a law by the Parliament to replace the Collegium system but it was struck down by the Supreme Court. The argument presented by the court was that it would threaten the independence of the Supreme Court. However, we do not see the hon’ble courts passing a judgement prohibiting any judge from taking any appointment post retirement, public or private, for a span of 10 years. The attraction of these jobs too threatens the independence of the judiciary. As pointed out by Arun Jaitley, the desire for a post-retirement job influences their pre-retirement judgements.
A recent paper by Madhav S Aney, Subhankar Dam and Giovanni Ko (2021) titled “Jobs for Justice(s): Corruption in the Supreme Court of India” provides interesting evidence on this by constructing a data set of Supreme Court of India cases involving the government for 1999-2014: “We find that incentives to pander have a causal effect on judicial decision-making, and they are jointly determined by the importance of the case and whether the judge retires with enough time left in a government’s term to be rewarded with a prestigious job. We also find that authoring favorable judgments increases the likelihood of being appointed to prestigious post-Supreme Court jobs. This suggests the presence of corruption in the form of government influence over judicial decisions.”
If the judiciary is so interested in preserving its independence, then it must first restrict its retired members from occupying such positions. It must further stop creating committees composed of retired judges to look into how to fix the fee charged by education institutions or how to bring down the pollution in Delhi. After all, in the latter case we have seen how little those committees have achieved — even as they have imposed massive costs by way of their recommendations.
It is honestly worrying that the judiciary does not see a need to reform itself in consultation with the Parliament. When we see our judges pass judgements on the permissible height of Dahi Handi during Janmashtami, even as crores of cases are pending at various levels of the judiciary, it is only natural to ask about judicial accountability. More so when judges attempt to pass judgements in the interest of the environment but end up ignoring the economic and social consequences of their actions.
Another “basic structure” or an ideal by the drafters of our Constitution was to ensure access to justice was a right, not a luxury. The judiciary in 2022 must introspect if it has lived up to this ideal or not. More so when we hear stories about victims passing away even before justice could be delivered to them. As the saying goes, justice delayed is justice denied — and in India’s case we end up denying it most to the poor and vulnerable.
The idea of a basic structure itself is something that needs to be further discussed and debated, given that social progress will necessitate changes to the Constitution. Constitutional amendments, passed by two-thirds of majority in Parliament and by half of the state Assemblies should be allowed to make changes even to the basic structures such as how judges are appointed.
There are numerous examples of societies where judges are appointed by the legislative and yet they remain functionally independent. Therefore, if independence is the concern, then the Chief Justice can find a workable solution in consultation with the Parliament.
At the same time, they must constitute a constitutional bench to outline what they mean by the basic structure. Such a review from time to time will restrict courts from striking down any law that they feel as violating the basic structure doctrine. It will be useful for judges to recall the advice given by Justice Bhagwati on judicial activism as he cautioned against excessive use of these powers. He argued that they must be exercised with the objective of obtaining a “willed result”.
A comprehensive judicial reform is needed to ensure a well-functioning judicial system. Given our poor rankings on enforcement of contracts, high litigation costs and lack of clarity on judicial outcomes due to inconsistency on part of judges — our judicial structure is certainly a constraint even on our growth process. Thus, there are economic arguments in addition to ethical and moral ones that necessitate a reform of India’s judicial architecture. Appointments can be a nice starting point for the same.
Prior to 2014, many of urban luxuries were out of the reach of the poor. Post 2014, access to electricity, toilets, LPG connections and now even piped water have become near universal. India awaits a similar moment when it comes to justice. The question is, will the present Chief Justice of India, DY Chandrachud (son of 16th Chief Justice of India YV Chandrachud) lead the process of reforming India’s higher judiciary? Only time can tell.
Karan Bhasin is a New York-based economist. He tweets at @karanbhasin95. Views expressed are personal.
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