It’ll take more than a few better judges

Justice is now politics by another name or quite simply about luck. That’s the real crisis.

Written by MADHAV KHOSLA | Updated: August 20, 2014 8:24 am
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.

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 facing the Indian judiciary is not the appointment of particular judges and the fact that the institution has nearly complete say over succession. It is, instead, that the culture of judicial reasoning and the sanctity of judicial process, upon which accountability and legitimacy rest and which judicial independence is meant to serve, has broken down. The origins of this collapse lie in the public interest litigation (PIL) era. Although the PIL movement brought attention to matters that were shamefully ignored, often energised an otherwise uninspired executive and amplified the voice of the courts, it came at the cost of sacrificing those very elements that make courts what they are. Dilution of standing requirements, ongoing supervision that removed finality from the judicial process and a consultative style of adjudication that departed from norms of reasoning, all contributed towards changing the character of courts. The present disenchantment is, to a large extent, a function of this intellectual crisis, where we no longer like the decisions that courts offer and, with the breakdown in norms and reasoning, are no longer satisfied by the process by which the decisions have come about. The point is not that judges are unaccountable because they are self-selecting. If they have become unaccountable, it is because the central tenets of the rule of law themselves have been jettisoned.

The second major crisis is a more institutional one, and relates to judicial capacity and the sheer ineffectiveness of the institution. The pendency statistics are a scandal, with around 65,000 cases currently before the Supreme Court alone. The number of courts and judges tell a similar horror story. In the United States, there are over a hundred judges per million citizens; in India the number is roughly 10. A consistently embarrassing budgetary allocation for judicial institutions and the failure to increase courts and capacity has meant that, in India, the judicial process is often the punishment, a fact brought out most starkly by the state of undertrials. This crisis is part of a larger narrative of failing state capacity in modern India, and to believe that a few better judges is what judicial reform means is akin to believing that a couple of new IITs can remedy India’s higher education woes.

The excessive focus on appointments and the absence of any mention of serious reform make these new measures appear less about judicial accountability and more about power. They appear as attempts to curb judicial independence without any serious introspection over what role the judiciary ought to play and how independence and accountability interact. 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. Justice is now politics by another name, or quite simply about luck. Until the nature of these crises is fully understood and reforms focus on what matters, little will change, regardless of a few different judges in the Supreme Court. The flawed and troubling composition the new measures prescribe for the National Judicial Appointments Commission are likely to make things much worse — but, whatever they may or may not achieve, rest assured they aren’t about legal reform

The writer is a researcher at Harvard University, and author of 

‘The Indian Constitution’ (Concluded)

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    ashok kumar
    Aug 20, 2014 at 6:19 am
    Corrupt practises start because of shortages and delays judiciary things can improve only when infrastructure is created for and large number of judges brought into the system. At the same time the rot set in existing system gas also to be tacled and the bill is in that direction
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      A S
      Aug 20, 2014 at 1:10 pm
      The atmosphere in courts needs a serious overhaul. The procedures also need revisiting. Why do courts give innumerable adjournments? For those who prefer to argue as party in person it is almost impossible because he doesn't get the cause list and adjournments. We talk of productivity of other services. The productivity of judges needs essment.
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        Chandrakant Marathe
        Aug 20, 2014 at 9:28 am
        In my view the political cl in India is not interested in clearing the backlog of cases since they have wasted interest. Common man believes that all the corrupt in 2G, Coal block, CWG, Wadra, Lalu and likes will live for ever a normal respected life and our nation will also bestow awards on them posthamously since they will be considered national icons in absence of any verdict against them. Can any political leader who is patriotic enough to correct this farcical story of India?.
        1. S
          Shailaja Chandra
          Aug 20, 2014 at 11:30 pm
          The writer has picked on very obvious points and seems to be far removed from the reality of what has been happening and also what the legislature and the executive can do and what they cannot.Reform of the judicial process requires placing a premium on speed, efficiency and incorruptibility -all of which have to be administered from within the judicial system. The consutional amendment which led to the ping of the Judicial Appointments Act was impossible without parliamentary unanimity on the need for this.It stemmed from the universal belief that the judiciary had been less than fair in selecting and elevating judges to the bench.To the naive and inexperienced, the amendment and the new law might appear only of cosmetic value. But perhaps the record of the kind of people who became judges should have been researched and commented upon first before castigating the move in isolation.This was the only way to start the process of change because until now in the name of judicial independence and the threat of contempt no one dared address the problems - although well- known.Finally the tipping point had come. While it is true that the executive ( Government) has not earned laurels for upholding either merit or integrity, at least a broad based selection committee would act as a check.All changes must necessarily start at the top and if good people get elevated they would address all the well- known problems the writer has labored to recount.Perhaps he is unaware that the consutional amendment and the ensuing Act came largely because the higher judiciary had systematically ignored the ills within the system and things could only change if good men were to head the system by default and not by accident. It is not often that in India the w Parliament agrees in one voice.The real test lies in the selection committee being above reproach and conscious of the need to induct the best people. It may or may not work ( given the failure of so many Governments in the past ) but at least give it a chance.
          1. S
            Aug 20, 2014 at 11:16 am
            A very good article on this topic after a long time. There is a need to look at the process of justice delivery in entirety and re-engineer it for effectiveness, quality and ability to provide justice. Even when a common man analyses judgments that appear in the media, there seems to be lack of consistency and standards. Some topics should clearly have been matter of policy, which probably judiciary should let executive work/reform them than p judgments. In some cases one court is at odds with another. Higher courts seem to intervene when not needed, There are too many adjournments and so on. Who gets bail is also difficult for common man to understand. Those who loot the nation in crores will be roaming free but common criminals remain as under-trials for years.
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