RIGHT ANGLE – Need for an Introspection by the Judiciary

Why must the government provide sanitary pads to the young girls in the schools? What should be the prices of the items that many of us buy from our departmental stores? Why is the government appointing some persons with undue speed in important positions? Why is the government not the right authority to decide whether medicines or vaccination should be free or not? On what basis did the government take the decision to demonetise higher currency notes a few years back and why cannot it repeat such acts? Should the government build new buildings for its offices? How will cricket be played in India and under what conditions?

The above list is just a sample of questions that many readers will wonder why one is writing on. But one is doing so because these are the questions that the Indian Supreme Court has been dealing with in recent years. And almost all these are matters that are, strictly speaking, under the domain of the Executive, that is the Government. By interfering in these matters, the court is not worried that it is destroying the spirit of the constitution as the Indian democracy, or for that matter any real democracy anywhere in the world, should stand on the separation of powers among its three principal organs – the executive, the legislature(that makes laws) and the judiciary.

On the contrary, some Honourable judges have been on record that they do not care about the separation of powers and that they have every power to remain the supreme authority in the country, with every other organ of the country obeying them. They cite in this regard the Article 144 of the Constitution that says that “all authorities, civil and judicial, in the territory of India shall act in aid of the Supreme Court”.

It is against this background that one may see the recent tussle between the executive and judiciary in some ongoing court hearings and at some public functions over their respective powers. Among the areas of their disagreement is the unique feature of the judges appointing themselves, absent in other democracies.

It may be noted that the most important judicial reform that the Modi government attempted to undertake was in 2014 through the 99th Amendment to the Constitution for establishing a National Judicial Appointment Commission, consisting of representatives from the judiciary, legislature and executive, to replace the collegium – system of appointments, in which judges appoint other judges. But it was aborted by the Supreme Court even though the government was able to garner support for the law in both houses of Parliament. The Supreme Court struck it down citing breach of judicial independence in October, 2015.

Unlike in the United States where appointments are a combination of ‘Presidential selection and Senatorial approval’, unlike in Canada where the appointment made by the federal cabinet precedes screening by a judicial advisory committee, unlike in Australia where Governor-General-in-Council makes the appointment and the cabinet headed by the Prime Minister on the advice of the Attorney General makes selections, and unlike in the UK where the Judicial Appointment Commission(consisting of legal experts and professionals) makes the recommendation that is submitted to the Queen who makes the appointment, in India it all began with the system of the President(union cabinet) appointing judges “in consultation” (which was non-binding) with the Chief Justice.

It was only in 1993 in the ‘Supreme Court Advocates-on Record Association vs Union of India’ case – popularly known as the Second Judges Case – that the Court declared Chief Justice the Appointing Authority and the President a ‘Consultee’. It established the Collegiate System (CS) of the CJI and four senior-most judges of the SC recommending candidates to the President for appointment to the higher judiciary. The government, at the best, can return the names to the CS for reconsideration, but if the latter recommends the same names then the government (President) has to appoint them. And it was done in the name of ‘judicial independence’ being a part of “basic structure” doctrine.

It is said that presence of a Law Minister in the proposed Judicial Commission and the appointment of two eminent persons in the Commission by a group, which would have, besides Chief Justice of India, composed of the Prime Minister and the Leader of the Opposition, would constitute political involvement in the judicial appointments. It was not convinced of the arguments that Prime Minister, Law Minister and leader of Opposition were constitutional posts , not political persons, and all of them were covered under the same basic structure of the constitution that ensures “parliamentary sovereignty’ and an “elected and accountable government”(that included the Prime Minister and Law Minister).

Thus in India we have a judiciary where the judges appoint fellow judges at higher echelons. This is a unique feature of Indian democracy. As has been already noted, in no other democracies do judges appoint their colleagues and successors. Judiciary in India is not at all accountable to either the executive or the legislature.

The only weapon that the legislature has is the power of impeachment of the judges. But it is a power that is on paper; its exact implementation depends on overwhelming cross-party support in both the houses of the Parliament, a highly unlikely scenario under normal times. In fact, such is the independence of the Supreme Court in India that once former Chief Justice (Justice Altamas Kabir) has rightly described Indian judiciary to be “the most powerful in the world”. And this power has not come alone from its structure and composition. It has been also due to its ever increasing powers and jurisdictions, as decided by itself and much against the anguish of the government of the day.

According to our constitution-makers, the Supreme Court had three main functions – “original jurisdiction” over disputes between centre and states, “appellate jurisdiction” (the highest court of appeals), and “advisory jurisdiction” when the President seeks specific advice on apparent ambiguities regarding the interpretation of a clause of the Constitution.

However, the Supreme Court of India grew considerably in power and stature since the mid 1980s when justifying why “Supreme Court of India should become Supreme Court of Indians”, it tried to expand ‘access’ to justice through what are known as Public Interest Litigations(PIL). It all started with landmark S.P. Gupta vs. President of India and others judgment, in which Justice P.N. Bhagwati, the key architect of PIL, relaxed the locus standi, and opened up the doors of the judiciary to public spirited citizens – both those wishing to espouse the cause of the poor and oppressed and those wishing to enforce performance of public duties. He made it clear that “any member of the public acting bona fide and having sufficient interest in instituting an action for redressal of public wrong or public injury could move the court. The court does not insist on strict procedures when such a person moves a petition on behalf of another or a class of persons who have suffered legal wrong and they themselves cannot approach the court by reason of poverty, helplessness or social backwardness.”

In other words, the court changed the old concept of locus standi by allowing people who had a stake, direct or indirect, in the outcome of a suit, to be represented in the judicial proceedings.

PIL heralded the era of what is called “judicial activism” in India. Through PIL, the court creatively expanded Fundamental Rights, especially Article 21, to cover the right to live with human dignity, the right to livelihood, the right to education, the right to health and medical care of workers, and the right to a healthy environment. In the process, the court has entered itself into the shoes of the executive branch. It now grants compensation to the victims, passes orders to rehabilitate bonded labourers, issues directions to rickshaws to rickshaw pullers and to prevent them from unemployment, frames guidelines to check environmental pollution and so on.

In a significant judgment in Vineet Narain vs. Union of India, court used ‘continuing mandamus’ to give government a series of policy directions including conferment of statutory status to Central Vigilance Commission, manner of their selection, tenure and other nitty-gritty of executive job. In the similar manner of asserting its power of “judicial review”, the Court in recent years has further sharpened its weapon of “continuing mandamus” for use; it has passed orders and formulated guidelines on issues of social welfare, environment protection, electoral reforms etc.

And all this at a time when there are thousands of cases pending in the Supreme Court of India. And if one takes the total edifice of the judiciary in the country, including the High Courts, there is said to be a backlog of nearly four crore cases.

Few can contest the adage that “justice delayed is justice denied”. If the Judiciary’s principal function is to render justice, then our courts are egregious in slow delivery of justice. Who is responsible for this? Judges often attribute the delay to inadequate infrastructure and lack of facilities for judicial functionaries. They also hold the government responsible for insufficient budgetary provisioning. But then, one hardly finds any department in India which is satisfied with budgetary allocations.

On the other hand, the fact remains that over the last 20 years, there has been a consistent rise in budgetary allocations for the judiciary. Salaries of the judges and other judicial officers have been regularly rising. Infrastructures, including digitalisation, have seen an improvement.

It is time, indeed, to dispassionately examine the functioning of courts and signs of an increasing loss of public faith in the judiciary. Most of the ills here are the judiciary’s own making. See the delays in registering cases and rise in misplaced case records in our lower courts. See the way the non-judicial staffs are taking advantage of the prevailing opaqueness.

Similarly, see how the delays in justice are caused due to the lawyers seeking unnecessary processes and repeated adjournments, and the judges granting their wishes. See the manner of lawyers trying to influence the conduct of courts by forcing strikes for days and weeks. See the difficulties people have in getting in time the judgment orders in the absence of uploaded authenticated digitally-signed judicial orders that can be readily downloaded by litigants on payment of service charges online.

And see how much time our higher judiciary takes in attending to PILs that habitual petitioners and legal practitioners bring , despite the facts that most of them are not genuine and meant essentially for settling political scores, gaining easy publicity or fulfilling private interests.

Judiciary in a democracy should also not use PIL as a device to run the country on a day-to-day basis or enter the legitimate domain of the executive and legislature. The entertaining of such frivolous public interest litigations is nothing but a trivialisation of the justice system, even if it assures the judges dealing with them to be in the limelight. Valuable time may be better spent on tackling the mounting case pendency.

There needs to be a system that strikes a balance in allowing legitimate PIL cases and discouraging frivolous ones. The Court also needs to make genuine procedural changes to discourage the prioritisation of a few high-profile cases as dictated by a select group of high profile lawyers and fix timelines for submissions by litigants. It is equally essential to impose punitive measures on those who indulge in frivolous litigations, document-faking, perjury, contempt of court, and the like.

However, purging all the above malpractices, which indeed will be real judicial reforms in the country, is essentially the task of the judiciary itself. The purge of malpractices has to come from within. The way our top judges administer the judiciary is not transparent enough. If the judges can appoint themselves in India, why can’t they be equally sanguine in judging in their own record? Why does not the Supreme Court resort to such “judicial activism”? That will be really welcome.