It is almost an article of faith in India that, to preserve judicial independence, the judiciary mustn’t be made to submit to any kind of accountability other than what it alone proffers. The fear of judicial independence getting eroded holds so firm that it has helped the judiciary tide over whatever crises of faith the masses may have had. Arghya Sengupta of Vidhi Centre for Legal Policy examines the contrived independence/accountability binary in the context of the higher judiciary in his book ‘Independence and Accountability of the Indian Higher Judiciary’ since the higher judiciary frames the rules of judicial governance in India. In an e-mail interview, Sengupta tells Sarthak Ray, among other things, why the current controversy over alleged sexual misconduct by the Chief Justice of India (CJI) has links to how the higher judiciary has interpreted judicial accountability over the years. Excerpts:
The way the Supreme Court has handled the allegations of sexual harassment—brought by a former employee against the CJI—has brought the top court and, indeed, the higher judiciary under a cloud. Where is this problem rooted? Does it relate to the overall lack of accountability of higher judiciary?
I don’t think the proceedings of the in-house committee inquiring into allegations of sexual harassment against the CJI can, and should, be seen in isolation. Their method of functioning is a direct product of the in-house procedure to inquire into judicial indiscipline. This procedure itself is based on a simplistic view that judges alone can be trusted to deal with matters relating to fellow judges. This pertains not only to discipline, but to transfers and appointments as well. The conceptual cover for this view is provided by judicial independence. However, as I argue in my book, judicial independence has today become a sword to be wielded at will rather than a shield against excessive governmental interference. Judges cannot simply state that any demand for transparency such as disclosure of collegium recommendations, or accountability, such as a judicial accountability bill, is antithetical to judicial independence. That is frankly an indefensible understanding of independence. Judges must be independent, but they must also be accountable, impartial, and men and women of integrity. To take out one value and elevate it to the level of dogma, I argue in my book, is the reason why we are where we are today.
Has the higher judiciary become a law unto itself, given how it has walled out scrutiny? It pleads self-regulation in the name of separation of powers.
One would have hoped that if it is a law unto itself, that law it would follow would be the law of the land! But we have seen time and again this is not the case. Take the National Judicial Appointments Commission case. There were several issues with the NJAC Act that was passed by Parliament. Those could have been read down. But to say that judicial primacy in appointments is part of the basic structure of the Constitution at the same level as federalism, secularism and the rule of law is a trifle mind-boggling.
It’s a product of a mismatch between the accountability it owes and the power it enjoys. Over last two decades, judges, particularly of the SC, have become very prominent in everyday public discourse. With such visibility, the demands for accountability are natural. The SC has to introspect—if it wants to wade into governance issues ranging from NRC to BCCI to liquor vends on the highway, then it must be open to greater scrutiny, questioning and attention. It cannot rest on antiquated notions of convention and intrinsic integrity. Instead, if it wants to stick to time-tested convention, then it should do what judges are theoretically supposed to do—like umpires, decide disputes, and leave the actual matter of governance to players, i.e. the government.
Justice AP Shah says the problems highlighted at the Four Judges conference—while current CJI Ranjan Gogoi and three other senior SC judges accused then CJI Dipak Misra of sitting in judgment of cases pertaining to Misra, something that is mirrored in how Gogoi has dealt with sexual misconduct allegations against him—weren’t particular to Misra’s tenure as CJI, that this has been happening for years…
I’m not aware of the facts Justice Shah is referring to. But the controversy pertaining to the CJI as “master of the roster” is another example of old world convention operating in a changed world. The CJI and all chief justices the world over whenever courts sit in benches have to allocate cases. If you can’t trust the CJI to do that, then the person should not be CJI in the first place. But once a CJI, one can expect basic functions of this nature will not be questioned. This is not helped by the fact that both Misra and Gogoi have, in some sense, acted as judges in their own cause. When events like this happen, the effects aren’t felt immediately but the damage is lasting. The unfortunate outcome of both these episodes, irrespective of the merits of the cases, is the office of the CJI is no longer immune to doubts, gossip and speculation. This is an unfortunate development, but the writing was really on the wall for a long time.
Does the collegium system, brought in the name of separation of powers and independence of the judiciary from the executive arm of the government, of appointment to the higher judiciary enjoys the backing of the Constitution, however indirectly?
As I’ve argued in my book, the collegium has no constitutional basis. It was never intended by the framers who were categorical that the power of appointment belongs to the President who will ultimately be guided by the aid and advice of the Council of Ministers. Even in the immediate aftermath of the Emergency, the SC comprising stalwarts like Justice PN Bhagwati and Justice DA Desai refused to interpret Article 124(2) dealing with appointments to the SC to require a collegium. It is also not a practice anywhere in the world that judges are focally responsible for selecting judges. The Constitution was interpreted in this manner in the Second Judges’ Case because Justice JS Verma believed judges alone will be able to protect judges. As I’ve written in my book, “he created an institution with weak normative foundations, based on an unquestioned faith that the judiciary would be ideally placed to set its own house in order. Little did he realise then, that this act of judicial arrogation of appointment power, notwithstanding its noble intentions, would itself fall prey to undue influence and interference, tarnishing the image of the judiciary as well as questioning his own wisdom in adopting such a course of action.”
The striking down of the NJAC Act as unconstitutional was a blow to what you have termed the goal of nurturing an “an effective judiciary”, one that is independent, yet accountable. How do we correct that? Is it for the judiciary to correct its own course, or should a course-correction, even if it is terms of oversight like what was proposed in 2010, be legislated?
In terms of how the judicial appointments system can be changed, there is only one way—constitutional amendment. But it will be a difficult amendment given that the SC, whether rightly or wrongly in the NJAC case, has held judicial primacy in appointments to be part of the basic structure. So perhaps it might have to be an NJAC with a majority of judges combined with a transparent and publicly declared process of appointment. But this doesn’t mean the judiciary must not self-correct. It is always open to the judiciary to do so. This is what Justice J Chelameswar was advocating when he decided to not participate in collegium meetings batting for minutes to be recorded and proceedings to be transparent. But at that time the SC resisted and was aided in this by senior members of the Bar like Fali Nariman who said that the “citadel collapses from within” which stalled any reforms. So if the SC can introduce genuine transparency in selection process, have a fair method of conducting disciplinary enquiries and transfer judges only on basis of recorded reasons, those will all be meaningful changes.
Beyond the conduct of the judiciary, the problem of accountability also relates to punishment of erring judges. There are instances of allegations of corruption against High Court judges earning them, at the very worst, a transfer. The impeachment process is tedious and lengthy, one that inspires no confidence. What are your comments?
You’re right. There are no serious consequences for judicial misconduct short of impeachment. This is because the thought of High Court and SC judges indulging in misconduct was anathema to the founding fathers of the Constitution. The very thought could not be entertained! Today we are living in a completely different world, but the law is frozen in time. And we need measures to deal with that. The Judicial Standards and Accountability Bill creating mechanisms for dealing with misconduct short of impeachment—such as suspension, censure etc—is one method that I suggest. There are many more.
The churn and disquiet that we see around us today relating to the higher judiciary is unfortunate. But at the same time whenever there is a churn, there is a period of tumult. We are living in that period now. The judiciary is slowly but surely changing from a colonial institution steeped in convention to a more Indian institution that is comfortable in the rough and tumble of India’s noisy democracy. I expect the churn to continue for a decade or so, but after that we will find a judiciary that has regained public confidence not through secrecy and awe but through understanding and respect. I say this, both with hope and certainty, that such a day is not far away.
(‘Independence and Accountability of the Indian Higher Judiciary’ is written by Arghya Sengupta and published by Cambridge University Press. It releases on May 9, 2019, at 6:30 pm at the India International Centre, New Delhi)
via Judges must be independent, but must also be accountable – The Financial Express