[Ed Note: As part of our New Scholarship Section, we have been inviting discussants to respond to specific articles. This Response Piece is part of a series of posts indexed here discussing the public law themed articles featured in the recently released Issue 1 of the 2020 Volume of the Indian Law Review. We are grateful to Kaleeswaram Raj for accepting our invitation to respond to the Paper by Shivaraj S. Huchhanavar. One can read the short summary of the Paper by Shivaraj S. Huchhanavar here.]
Shivaraj S. Huchhanavar has analysed the deficits in the mechanisms to deal with the issues of corruption and misconduct in the Indian judiciary at length. He has comprehensively examined the existing system and built up a formidable case for reforms.
I have repeatedly tried to argue that almost every problem concerning the judiciary in India is in one way or other, connected with the process of appointment.[i] The opaque system for selection and appointment to the higher judiciary, inter alia, is not often capable of tracing out the most meritorious with professional, intellectual or ethical qualities. Once we are able to set right the existing faulty system for selection by democratising the process, the problem of corruption and judicial misbehaviour could be mitigated, if not solved, to a remarkable extent. In my view, Huchhanavar’s essay, which is otherwise elaborate and penetrating, does not trace out this fundamental link between judicial corruption and judicial appointment. This is my first submission. Taking lessons from jurisdictions elsewhere, one can see this linkage. An independent commission that has participatory and representative character can ensure a better judiciary with better people running it. One sees a good model in the UK, after the amendment to the Constitutional Reform Act in 2013. Canada demonstrates that “a more transparent, inclusive, and accountable process” as intended by the government that extends opportunity to a larger spectrum of candidates can create a stronger model by making use of “an independent and non-partisan advisory board.”[ii] Though the Canadian system might have its own shortcomings, yet it offers a lot in terms of structural and functional legitimacy and fairness.[iii] On the other hand, one finds a much politicalised means of judicial selection in the United States, based on lobbying and affiliations. In the US, allegations of aberrations in the system are not uncommon. Max Boot has explained about ‘the injudicious judiciary’ in the US with ‘perverse failures’ that led to a ‘juristocracy’ and ‘the civil injustice system’ with “judges who are ethically challenged.”[iv] The total disregard to the ‘values of judicial life’ in the process of selection is an issue concerning the subordinate judiciary as well.
My second submission is that Huchhanavar, while (correctly) emphasising the need to evolve a formal mechanism to ensure judicial accountability, loses sight of the need to evolve an informal cultural ambiance that tries to ensure institutional probity, by maintaining better levels of internal democracy within the judiciary. The new cult of bhakths has the tendency to tolerate the intolerable, for immediate individual gains, at the cost of the system. The kind of overall support to the judiciary by some legal luminaries even during the unjust political situations impacting the judiciary offers a serious lesson. When the then Chief Justice Ranjan Gogoi adopted a strange procedure to handle the sexual harassment complaint against him, even a senior lawyer supported the patently unacceptable judicial conduct.[v] Only an assertive bar can take a critical and positive role in ethical regulation of the system. One cannot lose sight of the role played by a good number of lawyers during the critical times like emergency. A subservient judiciary cannot be a clean one. Even in recent times, in India, the Supreme Court Bar Association under the leadership of Dushyant Dave has spoken out against judicial high-handedness and systemic failures. The organic relation between the branches of legal fraternity needs a qualitative upgradation so that the derailment on the Bench is effectively and vigilantly taken note of and exposed by the immediate and direct stakeholders of the justice delivery system – the lawyers. The hierarchical nature of the legal profession, where new classes are created by methods like ‘senior designation’ often poses its own barriers in freely and objectively subjecting the system to critical scrutiny. The point therefore is that the critical solidarity of the Bar can, to a considerable extent, ensure an internal check on the system, informally yet, strongly. A divided bar based on artificially and subjectively created hegemonies within it can perpetuate the disorders in the judiciary making it a system for a few. Monopolisation of the justice delivery system by a group of legal plutocrats can destroy the foundations of judicial justice and thus of constitutional democracy. Here again, the US scenario makes an illustrative case as explained in the Reuters report ‘The Echo Chamber’ (December 8, 2014). The profession’s inequalities within, can perpetuate the feudal and capitalist traits. It is unfortunate that the Indian Bar is a divided house and the class equality in the fraternity still remains a dream. Judicial corruption with the indications of crony capitalism is yet to have its opponents from within the system.
Thirdly, the judiciary’s own role in the reform process, which Huchhanavar has indicated, needs emphasis. Judicial statesmanship has immense potential in making systemic solutions to corruption and misbehaviour. I have tried to explain elsewhere how the then Chief Justice Willy Mutunga in Kenya could evolve reformative measures like ‘judicial ombudspersons’ and the ‘Court Users’ Committee’, which are part of the ‘Judiciary Transformation Framework.’[vi] Such devices are enrooted in the Judicial Service Act, 2011. Facilities for oversight and supervision were also formally designed in Kenya, a late comer to the galaxy of constitutional democracies. These reforms were more at the instance of the judicial branch, though they could persuade the executive and legislature in Kenya to follow the track. This has drastically varied the public perception of Kenya’s judiciary. Maya Gainer, citing a Gallup poll result, says that “61 percent of Kenyans had confidence in the judiciary in 2013, as compared to 27 percent in 2009” although “the gains eroded over time.”[vii]
I agree with Huchhanavar when he pleads for a formal mechanism to deal with the problem. Here, one needs to deliberate on the Judicial Standards and Accountability Bill passed by the Lok Sabha in March 2012 that lapsed with the dissolution of 15th Lok Sabha in 2014. Accountability needs concrete understanding and prescriptions to the maximum possible extent. The real challenge here is legislative and political. We need to seriously think about a model legislation that also amends the Constitution to evolve a mechanism to strike a balance between judicial independence and accountability. This again is a political question. Sadly, no political party in India has ever been serious about reforming the country’s judiciary. It therefore needs to be an agenda for the people’s manifesto.
[i] In a different epoch, The Telegraph, 13 July 2020.
[ii]Eszter Bodnár, The selection of Supreme Court judges: What can the world learn from Canada, What can Canada learn from the world?, ELTE Law Journal (2017).
[iv] Max Boot, Out of Order, Basic Books, 1998.
[v] V.Giri, By established law and procedure, The Hindu, 10 May 2019.
[vi] Rethinking Judicial Reforms: Reflections on Indian Legal System, Universal Lexis Nexis, 2017.
[vii] Maya Gainer, How Kenya Cleaned Up Its Courts, Foreign Policy, 9 July 2016, available at https://foreignpolicy.com/2016/07/09/how-kenya-cleaned-up-its-courts/.