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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.

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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