Speaking at the B G Verghese Memorial Lecture
last week, former Chief Justice of Delhi High Court A P Shah called for the higher judiciary in India to reform itself from within. He noted that a “deeper malaise afflicting the Indian judiciary” had been revealed in recent times. Significant markers of this malaise included the withdrawal of the Supreme Court from mechanisms of accountability, such as the Right to Information (RTI) Act, and the allegation, made by the four senior-most judges of the Supreme Court, that they were excluded from all weighty constitutional matters being decided by the court
. Justice Shah noted that the Russian Federation’s higher judiciary had often been criticised for arbitrariness in how cases were allotted, leading to questions about its independence and fairness. India should learn from these errors of judgement, he argued. It is difficult to disagree with Justice Shah that reform of the higher judiciary is needed and that the only institution that can initiate and properly conduct this reform is the judiciary itself. While other institutions, including the media and the Bar, might be able to urge the judges to act, in the end, steps to preserve their independence and authority can only be taken by themselves. The current moment should be seen less as a crisis and more as an opportunity to recover the Supreme Court’s position.
Several steps could be taken in short order, and Justice Shah’s suggestion as to what these steps could be is sound. For one, the court should accept that the RTI Act applies to its functioning. This decision, as Justice Shah points out, has been pending for over 10 years. Second, the allocation of cases should become more objective.
Reform of the process of roster-formation can take into account how this essential task is performed in other jurisdictions — Justice Shah particularly highlights the European Union’s judicial institutions’ rules-based solutions to the problem. Finally, power should be shared between chief justices and the other judges of the court; and an appropriate mix of judges, junior and senior, should be assigned to each important or high-profile case. Justice Shah’s intervention is timely. It is perhaps important to recall that the power of the judiciary in any system comes entirely from its perceived impartiality. Judges have no armies to order nor do they have a democratic mandate that automatically grants them legitimacy. The judiciary, thus, has a more daunting task than the other two branches of government when it comes to preserving its authority. This preservation requires periodic reinvention and reform. Questions about how the higher judiciary manages the affairs of the nation cannot be allowed to persist, for the institution’s sake. Thus, reform of the roster and increased transparency are essential steps. It will also be necessary for the judges to examine whether the collegium system that has been evolved for appointments at the level of the higher judiciary is serving its purpose. A more broad-based and consultative mechanism, with greater accountability and transparency, should be decided on for judicial appointments. That is another essential step for maintaining the higher courts’ authority.
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