With Ajit Prakash Shah, former Chairman of the 20th Law Commission of India, also the Chief Justice of the Delhi High Court from May 2008 till his retirement in February 2010.
How would you describe the role of the judiciary in India’s constitutional structure? Are the High Courts and the Supreme Court fulfilling that role?
The Constitution gives the judiciary powers to maintain the rule of law, to safeguard the supremacy of the Constitution, and to ensure that the government runs according to constitutional principles. The courts also have the powers of interpreting and protecting fundamental rights through the enforcement of writs. The judiciary is, therefore, designated as a sentinel to keep the other limbs of the state in check.
Unfortunately, the Supreme Court – especially in recent times – has failed the Indian people. There are a host of issues that beg judicial deliberation today, especially pertaining to transgressions of the executive, such as cases concerning 4G Internet and preventive detention in J&K, the constitutional validity of the Citizenship Amendment Act, suppression and criminalization of protests against this law, misuse of draconian laws like sedition and the Unlawful Activities Prevention Act (UAPA), electoral bonds, among others. Sadly, the Supreme Court is either watching silently, readily acquiescing or mostly looking away, as though nothing has happened. This is an abdication. In contrast, High Courts have performed a stellar role. Unfortunately, in some matters, such as the misuse of the UAPA, they are shackled by patently wrong precedents set by the apex court.
Is the sliding standard of judicial independence linked to larger systemic problems in our democracy?
On paper, we have a liberal, democratic, secular republic with all its wheels in place. We have fundamental rights protected by seemingly impenetrable firewalls. With a parliamentary government, separation of powers, and a federated division of responsibilities between the centre and states, our system is the envy of many. Unfortunately, this is all only on paper. In India today, every institution, mechanism or tool that is designed to hold the executive accountable, is being systematically destroyed. It is not just the judiciary that has fallen victim to this. Parliament has already failed us during the pandemic. Add to this list, the Election Commission, the National Human Rights Commission, the Information Commission, academia, the press, and even civil society.
We’ve heard a lot in recent years about the role played by the CJI as the master of the roster and the problems that come with it. Why is it that we’re seeing it as a special issue today?
The difference between the past and present is the way in which the master of the roster is being strategically used and abused. I think the misuse was not so apparent earlier. It might also be because the executive and the legislature understood and respected the role that the judiciary played in preserving balance and harmony in the functioning of the state.
Today, there is no need to expend energy in packing the Supreme Court with pro-government judges. Finding over 30 judges who think alike would anyway be difficult, if not impossible. The combination of opaque systems like the ‘master of the roster’, and a certain kind of Chief Justice of India, and a handful of ‘reliable’ judges, is sufficient to destroy all that is considered precious by an independent judiciary.
The unprecedented judges’ press conference recognized the problem with the master of the roster system, and it is acknowledged that viable alternatives exist. But no CJI is willing to let go of this power. Today’s situation was foreseen many decades ago by Chief Justice Y.V. Chandrachud, when, in 1985, he observed, ‘There is greater threat to the independence of the judiciary from within than without...’
Urgent reforms are necessary to the allocation of work. We can adopt systems from other jurisdictions, such as the European Union, which are either rule-based or truly randomized.
The framers of India’s Constitution made great effort to insulate the judiciary from other wings of government. Are the present failings a product of the Constitution and its text?
The members of the Constituent Assembly were especially aware of the dangers of not having an independent judiciary and made every effort to ensure that this did not happen in India. This was done through various provisions, such as those that ensure security of tenure for judges, or protect the salary and perks of judges, etc. The conduct of a judge cannot be discussed in parliament or a state legislature.
Whatever little power was there, notably the power of supersession in the appointment of the CJI as used by Indira Gandhi, has since gone, since the appointment of judges is now in the hands of judges themselves. Arguably, we have far more elaborate provisions to ensure that the judiciary acts as a countervailing balance than say in the UK or the US. I do not think the Constitution is at fault at all. The best laid plans can be undone in the hands of the wrong people. Unless the people change, and their motivations change, I do not think the best-written constitution will be able to help.
The problems with judicial independence have been repeatedly highlighted – an opaque system that is used to appoint judges and post-retirement jobs chief among them. Are there other systemic ills that need fixing? And if so, how must those ills be fixed, what is the way forward?
The process by which a judge is appointed to the High Court or the Supreme Court is opaque, suffers from biases of self-selection and in-breeding, and the collegium itself functions like a club or cabal. The collegium system conflicts with the intent of the framers of India’s Constitution; it detracts the judges from their principal judicial work of hearing and deciding cases; it resorts to ad hoc informal consultations with other judges, without investigating criteria such as work, standing, integrity and so on; it lays too much emphasis on seniority; assessments during consultations are sometimes warped or tainted, and sometimes better judges are overlooked or ignored. Additionally, the collegium system puts the courts outside the sphere of legitimate checks and balances.
The Constitution does not grant the Supreme Court any administrative control over the High Courts. But the Supreme Court has been exercising such control unsubtly through the collegium system. Today, even if a Supreme Court judge is not a part of collegium, they are invariably consulted in matters relating to their parent High Court, especially regarding the appointment, promotion or transfer of judges in those High Courts. Every Supreme Court judge, thus, carries a lot of clout. Effectively, through this, the career prospects of High Court judges are at the mercy of Supreme Court judges from their parent High Courts. This has also spawned a culture of sycophancy and subservience in the system. A classic case that seems to be a fallout of all this is playing out as we speak (i.e., the allegations involving Justice N.V. Ramana).
I think selection is the fundamental problem, and reforms are urgently needed. Someone like Justice Chelameswar emphasized this, by walking out of a collegium meeting when he was still a part of it, in protest against the lack of transparent procedures. Transparency requires that there are clearly established criteria for selection, and that records of selection meetings are properly maintained with views of those who participated properly recorded, to ensure that selections were not arbitrary.
The Supreme Court had a terrific opportunity with the National Judicial Appointments Commission (NJAC) Act judgement to reform a system that it itself acknowledged as being flawed. But it did nothing of the sort. It did not place safeguards within the NJAC that would have made it constitutionally valid. It also did not reform the collegium in any way.
It is never too late to fix this. But the judiciary is a deeply hierarchical institution. I think we need people that are eager and willing to bring about change, people who are interested in the greater good. Such a leader/team must also acknowledge that change cannot be brought about in piecemeal fashion, through small procedural tweaks or minor reorganization. The judiciary is at a juncture where change is needed at scale. We have many judges and exemplary lawyers who are sincere and committed to constitutionalism and to the rule of law. I expect they will rise to the occasion. More than 70 years ago, in the Constituent Assembly, Nehru had said that we needed judges of the ‘highest integrity’, who would be ‘[persons] who can stand up against the executive government and whoever might come in their way.’ I am hopeful that we will once again be able to see judges like these thrive in India.