WITH DUE RESPECT, YOUR LORDSHIP
Indian democracy has succeeded for a range of reasons — an enlightened political leadership which wrote a remarkably progressive Constitution; political parties which have played the democratic game within rules; an aware electorate which has kept the parties on their toes; a vibrant civil society which has championed rights and justice; a free press which has kept citizens informed and kept power under check; and, institutions which have fulfilled constitutional obligations.
Among these institutions, India’s independent judiciary occupies a place of pride. For the most part, it has defended individual liberty and protected fundamental rights; it has expanded the idea of justice and pushed the State to support the vulnerable; it has resolved disputes between the State and citizens, among citizens, between the Centre and states, and between states; it has stood as a pillar in defence of the basic structure of the Constitution; it has served as a check on executive excesses; and it has given hope to all stakeholders, from the powerful to the weak, that there will be justice.
And that is why a robust and independent judiciary is so critical to India’s constitutional functioning. In recent years, however, there appears to be a trend which suggests a much closer alignment between the judiciary and the executive than is healthy for a system based on checks and balances. The judiciary is far too important for anyone (including judges themselves) to assume it is perfect. On the basis of the principle that anything can be improved, this
trend and its specific manifestations need further discussion.
The first is the incentive structure of the judges. This is crucial to safeguarding the independence of the institution and maintaining its credibility. While the judiciary has fiercely guarded its right over appointments — though the executive has been able to exercise influence, both directly and indirectly, over the collegium process — there is another way in which judges may not be entirely free of external incentives while exercising their duty.
A 2017 working paper — Jobs for Justice(s):
Corruption in the Supreme Court of India — by Madhav Aney, Shubhankar Dam and Giovanni Ko, based on a dataset of all Supreme Court judgments between 1999 and 2014 involving the government, found that authoring judgments “in favour of the government” had a “positive” association with the likelihood of a prestigious post-SC retirement job. The paper, written for the Singapore Management University, concludes, “Our analysis suggests that the prospect of being appointed to government positions after retirement could be a way in which the executive exercises control over an otherwise independent judiciary, in countries with judicial term limits.” This trend appears to have only continued post-2014. When a former Chief Justice of India ends up becoming a Rajya Sabha member or a governor, nominated by the president on the advice of the council of ministers, doubts grow.
In fact, it was the late and widely-respected Arun Jaitley — Bharatiya Janata Party leader, one of the country’s top legal minds, and former finance and law minister — who flagged the issue of post-retirement jobs influencing pre-retirement judgments almost a decade ago. Unless this incentive structure for judges changes — either through a prolonged cooling-off period before they can take on a role after retirement or a very restricted list of appointments — the perception that it is not just the legal facts of the case that determine a final judgment will prevail.
The second issue is what legal scholars have termed as “constitutional evasion”. To be sure, the SC is overburdened. But there appears to be a pattern where the timing of when a matter is taken up, or when an order is delivered or judgment is pronounced, has been convenient for the executive.
To be sure, the judiciary itself operates in a larger national and political ecosystem and to expect judges to operate in a vacuum may be unrealistic. But its ultimate loyalty has to be to the Constitution, without being swayed in any way by either public opinion or political thought. There have been a range of critical cases — the constitutionality of the changes in Jammu and Kashmir, the legality of the electoral bonds, the Citizenship (Amendment) Act, and most importantly, habeas corpus petitions — which are quite central to Indian democracy. But these have either not been taken up, or taken up after prolonged gaps, or not concluded.
At the same time, issues that appear aligned with the political preferences of the executive have reached their logical conclusion. On Saturday, The Indian Express reported that out of 10 cases which were to do with freedom of speech, the court upheld the right or gave relief in cases where the State and the petitioner argued on the same side and in six cases where the State objected, there was no relief to the petitioner. Or take even Ayodhya — the SC should have delivered the verdict on the long-pending case much earlier than it finally did; but the timing of the final verdict worked well for the political executive. None of this may be deliberate, but it creates apprehensions which the judiciary can well do without.
Three, in its approach to contempt, the SC appears to have adopted a somewhat rigid view. As debates elsewhere in constitutional democracies — particularly the United Kingdom — have evolved, the charge of “scandalising the court” has come to lose its validity. Yes, when there is an attempt to obstruct justice, when there is outright defiance of a court order by any party, when there is an effort to influence the legal process through extra-legal means, for instance bribing stakeholders, the Court must step in. But when there is criticism of the court, or of judges, then courts must be open — for it is this healthy criticism of institutions that help them improve in a democracy. Placing oneself above criticism, even as certain trends show that parts of the judiciary may not be working as independently as mandated, will not help the institution and its legacy.
India’s judiciary is a key pillar which has to be fiercely independent and be seen as such. This does not mean that it needs to be consistently adversarial to the executive. Nor does it mean that it should be far too friendly with the executive. A relationship of respect but distance, and based on law, between the judiciary and the executive and a relationship of openness, where the judiciary is open to feedback from citizens while citizens recognise the supremacy of the courts, is the most effective way for democracy to thrive and for the institution to regain its credibility.