Illustration: Jayachandran/Mint
Illustration: Jayachandran/Mint

The crisis in the judiciary was long in the making

If judges were freely intruding in the executive's and legislature's arena, it was only a matter of time before they stepped on each other's toes

Friday was an extraordinary day in the history of Indian judiciary. The four senior-most puisne judges of the Supreme Court called a press conference and aired their grievances against the Chief Justice of India (CJI). The matter at its heart is an administrative issue—of allocation of cases to different benches—and has been brewing over several months. The aggrieved judges—Jasti Chelameswar, Ranjan Gogoi, Madan B. Lokur, Kurian Joseph—feel that CJI Dipak Misra has been ignoring the senior judges of the court while allocating important and high profile cases.

The problem at hand may seem administrative in nature but there are deep and longstanding institutional forces at work. It is not difficult to figure out that a judge cannot be extricated from his/her judgement. Some judges are known for being lenient, some have higher propensity to hand out death penalty, and some are more agitated on environmental issues. As some scholars have shown, minor factors like the judges having or not having a meal before the case hearing may also have a bearing on the eventual sentence. But this is expected. What is not is that the CJI misuses his powers as the Master of the Roster to “fix" the cases by allocating them to certain benches.

To be sure, the four aggrieved judges do not make clear that their complaint is just against the incumbent CJI or if it includes previous CJIs as well. There are suggestions that the previous CJI J.S. Khehar may have also indulged in similar methods of unfair case allocation. This administrative tussle may well have spanned the tenure of many CJIs and perhaps more than one government at the centre.

To begin with, there is an obsession with seniority. The four aggrieved judges have made it clear that the CJI is first among equals, not superior to his colleagues. But on the other hand, they are apparently unhappy with important cases being allocated to junior judges—who should also be deemed equal by their own logic. The obsession with seniority is not just restricted to the judiciary, it is rampant across the government sector—more in the armed forces, less but significant in the bureaucracy.

There is a historical case for respecting seniority in the judiciary. It is well known that the Supreme Court under the leadership of A.N. Ray had failed the nation during the Emergency imposed by former Prime Minister Indira Gandhi. Ray was appointed by Gandhi as the CJI by superseding three judges senior to him. But there is also a case to be made that we may have learnt the wrong lesson from the Emergency. While the robotic process of selecting the senior-most judge of the Supreme Court as the CJI helps to keep executive interference away, the process lends itself to no reasonable assessment. As a result, there have been CJIs whose integrity have been questioned. Even as Misra was about to take over as the CJI, questions were raised about his own previous conduct. Shanti Bhushan, a senior advocate, even argued that the government should not hesitate to supersede Misra.

But since the latest allegation against Misra (and possibly his predecessors) suggests that even the CJI can be influenced, what was the point of warding off the executive from the CJI appointment process? And here is the bigger problem: the robotic selection of senior-most judge as the CJI isn’t robotic after all; it can be, at least theoretically, manipulated by the collegium—the CJI and the four senior-most puisne judges of the Supreme Court—which appoints the Supreme Court judges (the judge who has spent more time at the Supreme Court is considered for the CJI over another who has spent less time even though the latter may have served for a longer period, including at a high court). The collegium system came about as an attempt by the Supreme Court to recoup judicial independence but has now degenerated into an opaque system of self-preservation. The problem is so acute that accusations of nepotism thrown against the judiciary have become more serious and frequent.

The quest of judicial independence has been paralleled by another phenomenon of judicial activism. The court has stepped on the toes of the executive and the legislature with alarming frequency and this newspaper has been critical of this trait in particular. Taken together, the independence and activism have created an atmosphere of arbitrariness with few checks and balances. If the selection of judges and pronouncement of judgement are increasingly becoming arbitrary (think of recent flip-flops on the playing of national anthem in cinema halls and bursting of firecrackers on Diwali), the arbitrariness had someday to creep into the administrative domain as well. If judges were freely intruding in the executive’s and legislature’s arena, it was only a matter of time before they stepped on each other’s toes. Yes, the form that this took—a press conference—could not have been foretold.

This crisis is an opportunity for deep and long-lasting reforms. With its unique system of appointments, the Indian Supreme Court stands apart among major democracies in its lack of accountability—something that runs counter to the fundamental norm of a system of interlocking checks and balances among the arms of the state.

But will the judges who can’t unite on matters of everyday administration arrive at a consensus on difficult institutional reforms? The answer to this question will determine the future of the Indian judiciary.

Should the executive step in to catalyze reforms in the Indian judiciary? Tell us at views@livemint.com

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