Tuesday, Oct 21, 2014

It’ll take more than a few better judges

What the twin crises — the intellectual crisis in reasoning and the institutional crisis in capacity — have done is draw the integrity out of the judicial process. What the twin crises — the intellectual crisis in reasoning and the institutional crisis in capacity — have done is draw the integrity out of the judicial process.
Written by Madhav Khosla | Posted: August 20, 2014 3:36 am | Updated: August 20, 2014 8:24 am

With the Constitution (121st Amendment) Bill and the National Judicial Appointment Commission Act having been swiftly passed by both Houses of Parliament, it is only a matter of time before the formalities conclude and the collegium system comes to an end. Eminent jurists have raised important questions about the efficacy and constitutionally questionable character of these measures. What has invited less attention, however, is why and how judicial independence matters, and the various crises that affect India’s judicial system. Appointments to the higher judiciary are, in fact, a small part of the problem and an excessive focus on them distracts from larger issues of legal and judicial reform. What demands focus is the judicial process more generally, and attention towards it clarifies both the ideal of judicial independence and the present disenchantment with the judiciary.

Judicial legitimacy in any modern constitutional democracy is structured around process. Unlike politicians, who draw their legitimacy from the electoral success and the popular mandate, judicial power is sustained through a range of procedural mechanisms. Such mechanisms are meant to legitimise verdicts regardless of the specific outcome delivered, and are revealed in a range of formalities and rules that structure and govern the judicial process. Rules about being represented by counsel, the right to fair and impartial hearing, the importance of a speedy trial, the determination of evidence, the nature of proof, the relevance of a cause of action and so on aim to ensure that rulings are legitimate in the way in which they come about. At the heart of this aspiration is the idea of judicial reasoning. Judges are held accountable and their reasons are legitimised through processes of reasoning — their respect for precedent and treating of like cases alike, use of certain techniques of interpretation to understand ambiguous texts, mode of argument and claims of why some arguments succeed over others and so forth. It is this fact that makes courts unique sites of public reason.

It is in this context that judicial independence matters. The ideal of judicial independence is not grounded in consequential beliefs about better substantive outcomes. Instead, it is linked to the idea that, in order for the process to retain its integrity, judges must be immune to certain kinds of considerations and must exercise their judgement solely on the information presented by the parties before them. The accountability of judges is not to the political process but instead to the ideal of rule of law. The form of accountability for judges is distinct from that for politicians, and is principally found in the reason-giving character of their role. The major intellectual crisis continued…

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