THE HINDU EDITORIAL : JANUARY 18, 2018
THE HINDU EDITORIAL : JANUARY 18, 2018
Talking over a law: the need for public conversation on the judiciary
As the consequences of the historic press conference of the four seniormost judges of the Supreme Court play out, a constant refrain that has been heard is of the need to resolve differences internally. This was always going to be the stock response of dominant sections of a legal and judicial fraternity that constantly speaks truth to government but is uncomfortable when the same standards are applied to them. Such a refrain, at first glance, is curious, as it appears to be an attempt to close the stable doors after the horse has bolted. But in reality it is the carefully calculated response of an entrenched mindset that seeks to maintain public confidence in the judiciary by keeping it insulated from public spotlight, discussion and criticism. It is this mindset that was challenged, in cause and effect, by the press conference.
Lack of transparency
The immediate trigger for the press conference was the apparent arbitrariness of the Chief Justice of India (CJI) in allocating benches for disposal of cases. Whether indeed there was arbitrariness, and whether such arbitrariness, if any, was purely whimsical or motivated, is impossible for members of the public to ascertain. But if the four seniormost judges, despite their internal meetings with the CJI, resorted to the extreme measure of appealing to the public, their grievances are entitled to a certain degree of credence. Assuming such credence, the question that any well-wisher of the judiciary, whether inside or outside it, must ask is this: What is the institutional design that facilitated such seemingly arbitrary decision-making? One possible answer lies in the opaque internal structure of the judiciary founded on a combination of unquestioning trust in the office of the CJI along with an instinctive distaste for any interference by Parliament or government in judicial functioning. So sacrosanct are both these premises today that anything to the contrary appears blasphemous. However, their sanctity is neither natural nor long-held. At the time of the formulation of the Constitution, B.R. Ambedkar warned that no matter how upright the CJI might be, like any other mortal he too would have frailties. Thus no absolute power should be vested in him. Admittedly, Ambedkar was speaking about not giving the CJI a veto power in appointing judges; but the same sentiment rings true in case of the convention of allocating benches as well. After all, England, from where the convention of the Chief Justice as the master of the roster emanates, has been witness to several Lord Chancellors constituting partisan benches on matters of great political moment. Consequently, the principle that one should trust one’s Chief Justice, while admittedly a sound principle, cannot be an absolute one. That it has become so is testament to the legal fraternity closing ranks under the ruse of convention.
Fears of politicisation
The second premise justifying complete judicial insulation that makes arbitrary decision-making in the judiciary possible is the fear of politicisation. This is undoubtedly legitimate — a politicised judiciary might well suffer from a lack of public confidence. But the implementation of this principle is both over-broad and misdirected. In public discourse there is a false conflation of any parliamentary action relating to the judiciary as ipso facto affecting its independence. Whenever any move towards reforming the judiciary is made by politicians, commentators are quick to hark back to the Emergency and the supersession of three judges for the CJI that preceded it. But there is some distance, logically and factually, between superseding the CJI and proposing an accountability law for judges, revising the opaque process of appointment and looking to institute credible alternatives to a broken system of tribunals, as stillborn reform initiatives in the last decade have sought to do. Unfortunately, so deep is judicial memory of the Emergency that it has clouded in distrust many well-meaning attempts at judicial reform by governments and Parliament. Equally critically, this fear of politicisation is misdirected, being based on a naïve view that overt parliamentary law is the sole method of interference with the judiciary. What it fails to countenance is that more nefarious methods of political interference in the judiciary exist, and have always done so; moreover, that such methods thrive in opacity, subjectivity and a lack of norms. As Bentham said, a view the Supreme Court itself has endorsed in Mirajkar, “in the darkness of secrecy, sinister interest and evil in every shape, have full swing.” It is this darkness that the press conference of judges has shone a light on. To shut the light out and resolve the matter in darkness through an internal resolution would be exactly contrary to what the situation demands.
Need a ‘Supreme Court Act’
While internal resolution might be a palliative to tell the world that all is well with the Indian judiciary, it will, at best, be a band-aid solution. Were such a solution genuinely possible, one can safely trust that the four judges would not have resorted to a press conference to make their views clear. The press conference should make it clear to all that the ship of internal resolution has sailed. Instead, what is needed now is a Supreme Court Act to be passed by Parliament after an open public discussion involving all stakeholders — civil society, the judiciary, the Bar and members of all shades of political opinion. As a precursor to such reform, it is important to clarify that the Constitution envisages the powers and jurisdiction of the Supreme Court to be the possible subject matter of a parliamentary law. This is clear from Entry 77 of List I of the Seventh Schedule which makes the aforementioned a legitimate subject of law-making. Passage of such a law is critical to rectify the discourse of any parliamentary law relating to the judiciary being anathema. The substance of a proposed Supreme Court Act must be the restructuring of the Supreme Court itself. It is vital that a court of 31 judges, if it is to function as an apex court, must develop some degree of institutional coherence. Such coherence is impossible when the court sits in benches of two judges each. Further this structure allows the CJI to become the master of the roster, vested with the absolute discretion of allocating judges to particular cases, leading to crises like the present one. An antidote to both the aforementioned problems is a restructuring of the Supreme Court into three divisions: Admission, Appellate and Constitutional. All special leave petitions under Article 136 ought to be first considered by the Admission division. The division will comprise five randomly selected judges who for one quarter every year will deal only with admission cases. Like the Supreme Court of the United States, making this process work by circulation and without oral hearing needs to be strongly considered. The Constitution Division should be a permanent Constitution Bench of the five senior-most justices of the Court. They will hear all matters of constitutional importance and authoritatively pronounce the Court’s views on it. The Appellate division should comprise the remaining 21 judges (on the basis of the sanctioned strength of 31) with seven three-judge benches. They will hear all matters admitted by the Admission Division and any other writs or appeals which lie as a matter of right to the Supreme Court. Such restructuring will have three advantages. First, it will yield more coherent jurisprudence, particularly in constitutional matters, taking us closer to certainty and the rule of law. Second, it will allow for more careful contemplation of which matters actually deserve admission to India’s apex court. Third, it will reduce the discretion available to the CJI to select benches, since this will be limited to the appellate division alone. Needless to say, norms for such bench fixation and other matters relating to jurisdiction and powers of the Court may also be a part of the proposed law.
A public conversation
At this point of time, the proposed law is critical to start a frank public conversation around what the judiciary needs to restore public confidence. Such a public conversation is necessary to underline that the judiciary is part of a republican constitutional framework, not the preserve of lawyers and judges alone. An internal resolution will be its antithesis, which might defuse the present crisis, but will exacerbate the deeper wound.
Meaning: A result or effect, typically one that is unwelcome or unpleasant.
Example: “abrupt withdrawal of drug treatment can have serious consequences”
Synonyms: Result, Outcome
Meaning: Stop oneself from doing something.
Example: “she refrained from comment”
Synonyms: Abstain, Desist
Meaning: Friendship and mutual support within a group.
Example: “the ideals of liberty, equality, and fraternity”
Synonyms: Fellowship, Support
Meaning: A brief or hurried look.
Example: “I stole a glance at John”
Synonyms: Peek, Glimpse
5) Close the stable doors after the horse has bolted
Meaning: To be so late in taking action to prevent something bad happening that the bad event has already happened.
Meaning: Establish (an attitude, habit, or belief) so firmly that change is very difficult or unlikely.
Example: “ageism is entrenched in our society”
Synonyms: Establish, Settle
Antonyms: Dislodge, Superficial
Meaning: Protect (someone or something) from unpleasant influences or experiences.
Example: “the service is insulated from outside pressures”
Synonyms: Protect, Save
Meaning: Direct attention to (a problem or situation).
Example: “the protest spotlighted the overcrowding in British prisons”
Synonyms: Accentuate, Highlight
Meaning: The quality of being based on random choice or personal whim, rather than any reason or system.
Example: “disparate peoples were forced together by the arbitrariness of a colonial map-maker’s pen”
Meaning: Acting or behaving in a capricious manner.
Example: “the whimsical arbitrariness of autocracy”
Synonyms: Volatile, Capricious
Meaning: Find (something) out for certain; make sure of.
Example: “an attempt to ascertain the cause of the accident”
Synonyms: Discover, Establish
Meaning: A feeling of resentment over something believed to be wrong or unfair.
Example: “he was nursing a grievance”
Synonyms: Compliant, Objection
Meaning: Belief in or acceptance of something as true.
Example: “psychoanalysis finds little credence among laymen”
Synonyms: Acceptance, Belief
Meaning: (especially of language) hard or impossible to understand.
Example: “technical jargon that was opaque to her”
Synonyms: Obscure, Unclear
Antonyms: Limpid, Clear
Meaning: (especially of a principle, place, or routine) regarded as too important or valuable to be interfered with.
Example: “the individual’s right to work has been upheld as sacrosanct”
Synonyms: Sacred, Inviolate
Meaning: Sacrilegious against God or sacred things; profane.
Example: “blasphemous and heretical talk”
Synonyms: Profane, Irreverent
Meaning: The state or quality of being holy, sacred, or saintly.
Example: “the site of the tomb was a place of sanctity for the ancient Egyptians”
Synonyms: Holiness, Devotion
Meaning: The condition of being weak and delicate.
Example: “the increasing frailty of old age”
Synonyms: Infirmity, Weakness
Meaning: Give out or emit (a feeling, quality, or sensation).
Example: “he emanated a powerful brooding air”
Synonyms: Exude, Emit
Meaning: Something that serves as a sign or evidence of a specified fact, event, or quality.
Example: “growing attendance figures are a testament to the event’s popularity”
Synonyms: Testimony, Witness
Meaning: To combine two or more separate things, especially pieces of text, to form a whole.
Example: She conflated the three plays to produce a fresh new work.
22) Ipso facto
Meaning: By that very fact or act.
Example: “the enemy of one’s enemy may be ipso facto a friend”
23) Hark back
Meaning: If someone harks back to something in the past, they talk about it again and again, often in a way that annoys other people.
Example: He’s always harking back to his childhood and saying how things were better then.
Synonyms: Remembering, Reminding
Meaning: Take the place of (a person or thing previously in authority or use); supplant.
Example: “the older models of car have now been superseded”
Synonyms: Replace, Remove
Meaning: (of a proposal or plan) having failed to develop or be realized.
Example: “the proposed wealth tax was stillborn”
Meaning: Make or become less clear or transparent.
Example: “blood pumped out, clouding the water”
Synonyms: Darken, Blacken
Meaning: (of a person) natural and unaffected; innocent.
Example: “Andy had a sweet, naive look when he smiled”
Synonyms: Inexperienced, Guileless
Antonyms: Sophisticated, Experienced
Meaning: Admit as acceptable or possible.
Example: “he was reluctant to countenance the use of force”
Synonyms: Tolerate, Permit
Meaning: (typically of an action or activity) wicked or criminal.
Example: “the nefarious activities of the organized-crime syndicates”
Meaning: Declare one’s public approval or support of.
Example: “the report was endorsed by the college”
Synonyms: Support, Favour
Meaning: (of an action) intended to alleviate a problem without addressing the underlying cause.
Example: “short-term palliative measures had been taken”
Meaning: Contemplate or conceive of as a possibility or a desirable future event.
Example: “the Rome Treaty envisaged free movement across frontiers”
Synonyms: Foresee, Predict
Meaning: Denoting a thing or person previously mentioned.
Example: “songs from the aforementioned album”
Meaning: Something or someone that one vehemently dislikes.
Example: “racial hatred was anathema to her”
Synonyms: Abhorrent, Hateful
Meaning: The quality of behaving or speaking in such a way as to avoid causing offence or revealing confidential information.
Example: “she knew she could rely on his discretion”
Synonyms: Circumspection, Care
Meaning: Declare or announce in a formal or solemn way.
Example: “allow history to pronounce the verdict”
Synonyms: Announce, Proclaim
Meaning: A legal system.
Example: “American jurisprudence”
Meaning: Deep reflective thought.
Example: “he would retire to his room for study or contemplation”
Synonyms: Thought, Meditation
Meaning: A contrast or opposition between two things.
Example: “the antithesis between occult and rational mentalities”
Synonyms: Contrast, Opposition
Meaning: Make (a problem, bad situation, or negative feeling) worse.
Example: “the exorbitant cost of land in urban areas only exacerbated the problem”
Synonyms: Aggravate, Worsen
Antonyms: Calm, Reduce
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