It is difficult to overstate how disturbing the sight was of senior judges of the Supreme Court
gathering to denounce how their Chief Justice was running the court. It is not easy to see how the senior judiciary will easily recover from this incident, and from what led to it. The sole remaining Indian state institution that appeared to be above politics no longer is. Of course, many would argue it succumbed to politics long ago, but it is nevertheless clear that many judgments in the past 10 years or so — such as the Vodafone judgment, the 2G licence case, and others — had led to a belief that the Indian senior judiciary, even if it passed judgments that could be seen as disturbing, was nevertheless an important and independent voice.
For investors, India’s legal system is a minefield. This country’s contract enforcement record is uniformly poor. Even at the highest level, this is true to an extent. Companies and investors are simply not sure that, if they take on the government, they will get a fair hearing from the Indian system. Consider the 2G licence judgment — while it certainly seemed to demonstrate independence, given that it chose to go against declared state policy, it nevertheless penalised those who had bought licences in good faith. And in the Vodafone tax case, while the Supreme Court
overturned a Bombay High Court judgment to rule against the tax officers and for the company, the United Progressive Alliance government effectively used its majority to overrule the Court — or, if you prefer, to clarify a point of law that the Court had said was unclear. Either way, investors are right to worry about the legal system in general.
But this worry about the legal system never extended to fears that the higher judiciary was politicised to the degree that the dissenting judges have indicated it is. In a country which already has a poor record of contract enforcement, and in which the state is such a large player in the economy — indeed, the number one risk factor for most investors is surely government action — news that the independence of the judicial system is being compromised is indeed devastating. The claims being made that cases of political sensitivity are being selectively referred to certain Benches of the court are thus not just a political issue, but an economic one.
Illustration by Ajay Mohanty
India’s Chief Justice is, in some sense, a first among equals. As a judge, he is one among many — dozens, in India’s court, which is much larger than some others. But he has certain important administrative powers, in particular the ability to assign particular cases to particular selections of judges, or Benches. What we have just seen is the apparent breakdown of this system. Clearly, if the four judges who spoke out did so now — especially as we are less than a year away from a change of the guard, with one of the four in line to become Chief Justice — the problems with the “docket”, as this assigning of cases is known, will have been piling up for a long time. We outsiders can have no idea as to what is going on, but speaking purely theoretically, it is clear to an outsider how such a system could be manipulated if there are specific judges whose opinions on certain matters are previously known. Some senior lawyers have speculated in the press as to the closeness to the current governing establishment of some judges who have been assigned high-profile cases. Again, it is unfortunate that such speculation has been allowed to take root. Some of the flashpoint cases include the investigation into the mysterious death of a judge trying a murder case involving the president of the BJP, and a corruption case that allegedly involves another member of the senior judiciary, now retired. One senior judge, Justice Chelameswar, had ordered that a medical admission scam case — which involved alleged judicial bribery, and in which a retired judge of the Orissa High Court had been arrested by the Central Bureau of Investigation — be examined by a Constitution Bench of the five seniormost judges. Chief Justice Dipak Misra over-ruled him, as master of the docket, listing the matter for hearing by another Bench. What caused concern among lawyers and judges was not just that Justice Chelameswar appeared to be stepping into the CJI’s domain, but also that Chief Justice Misra himself was on the Bench that had dealt with a relevant case in the past.
This can hardly be seen as a fit space for the government to intervene, either, since the role and influence of the executive are central to the current dispute. So where can we turn to deal with this problem? It would be a great disservice to India if matters continued as they were after such disquieting concerns had been raised. Not to put too fine a point on it, India’s institutional environment is at stake. Citizens’ and investors’ rights are under threat if institutional independence and integrity are not upheld, going forward. But there are no easy answers as to what must be done. What is certain, however, is that doing nothing is the worst outcome.
Whatever action is taken must satisfy certain constraints. It must be transparent: The reputation of the senior judiciary demands that, in this case, openness be prioritised over the traditional opacity of the Court. Second, it must not be, or seen to be, influenced by the executive. Thirdly, it should involve senior members of the Bar, including critics of both “sides” to this dispute. Finally, it should end with significant reform of the selection choice of judges, and the nature of the Supreme Court
docket. It has long been argued that basic administrative duties should be taken away from judges and given to a legal agency such as has happened in the United Kingdom. Transparent principles for assigning cases should also be considered.
The four judges who spoke up did so, according to them, to protect their legacies. They were clearly concerned that they would be seen as complicit if problems with the Court later came out into the open. But we should have greater concerns. Restoring the reputation of the judiciary and its independence from the executive should be paramount among them.